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.

Foreign automakers keeping UAW out of plants

While labor unions have done well at organizing work forces at United States-based automakers, they've struggled to get into foreign automaker facilities in the United States. According to a recent MSNBC story:

While the UAW continues to represent Detroit’s Big Three manufacturers, it has all but completely failed to gain representation rights for the so-called transplant lines now run by virtually all the major foreign-owned automakers, from BMW to Toyota to Volkswagen.

UAW president Bob King sees these efforts as crucial to the survival of the labor union, warning "If we don't organize these transnationals, I don't think there's a long-term future for the UAW, I really don't". Last year, it was reported the UAW was considering going after Volkswagen and Daimler plants and now is reportedly looking at attempting to organize a Nissan plant in Mississippi. But the track record of organizing these companies plants isn't good.

Major union effort in SC Midlands fails

In one of the largest efforts in recent years by labor unions to organize a South Carolina workplace, workers handily rejected an effort by union organizers to organize workers at the Intertape Polymer Group plant in Columbia

The union lost the vote with 142 employees voting against the union, 97 voting for the union and 3 challenged votes. This rejection is another moment in what has been a long and contentious relationship between the company and the United Steelworkers Union. 

In watching labor union activity in South Carolina in recent years, union organizers have typically sought to score easy wins by focusing on small employers, usually with less than fifty workers, and overwhelm them. While some of these efforts succeeded, larger efforts, such as this one and the effort to organize the first Charleston Boeing plant, have gone badly for labor unions in recent years.