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.

Cracking down on Work Zone enforcement in South Carolina

Meet my car - or rather what's left of it.

Several weeks ago, my car was parked inside two closed-off lanes on one of my company's highway projects. In spite of the distance away from traffic, a driver entered the closed lanes and rear-ended it going 90. Not surprisingly, some time after the collision, he blew a .15.

It's a graphic example of the dangers faced in work zones every day by construction workers, dangers which are all too frequent.

But a lot of research indicates the majority of those who will die in work zones are in cars, not workers. On my company's projects, we've had eight motorists and three pedestrians killed in our work zones and zero workers in the last ten years.

Senate Bill 1464, which was introduced in the Senate today, would establish a work zone penalty which would provided dedicated funds for work zone enforcement costs and an additional two-point penalty.

If you've got any questions, feel free to ask me - or come join me in one of my work zones and see for yourself.

Federal court strikes down NLRB poster rule

In a setback to NLRB efforts, a federal court overturned the labor agency's notice posting rule.  Ruling in the case Chamber of Commerce of the United States v. NLRB, the court found the agency "exceeded its authority in violation of the Administrative Procedures Act", blocking the agency from requiring employers to posters which would have served as advertising for labor unions in the workplace.

According to Gray Geddie, Ogletree Deakins’ former chairman and the attorney who argued the case, "the court preserved the role of the NLRB as a quasi-judicial arbiter of employee rights, rather than an advocate for unions and unionization".

It still remains to be seen if the federal agency will now delay implementation of the notice posting rule until appeals are resolved, or whether the plaintiffs will be forced to apply to the court for a permanent injunction to prohibit enforcement of the rule on a nationwide basis.

Got a federal contract? Use E-verify

The E-Verify federal contractor rule, requires federal contractors and subcontractors to use the E-Verify system to confirm that all new employees performing work under federal contracts are authorized to work in the United States. Per this rule, federal contracts awarded and solicitations issued after September 8, 2009 must include a clause committing contractors to use E-Verify. The same clause will also be required in subcontracts over $3,000 for services or construction.

While E-Verify was originally intended solely to screen new hires, federal contractors will now be required to screen current employees who are working on that company's federal contracts. Those contractors will also be allowed to use E-Verify to screen all current employees, even those who may not be assigned to that project.

With new rules and regulations like this adding to the pressure to use E-Verify to screen employees, as well as the growing number of states which are mandating its usage for new hires, you might as well go ahead and start using it, even if you're not required to do so, so compliance won't be so difficult later on.

Please email me if you have questions.

April is Safe Digging Month

The month of April is National Safe Digging Month. This is the month where an extra emphasis is made to promote awareness of underground utilities and of the need to work safely around them.

But every month, every day, and every minute should see an equal emphasis upon safety around underground utilities for utilities, locators and diggers alike. Always call before you dig - it's safer and cheaper than what could happen should you hit something below.

"International Driver's License": Fake documents, very real threats to employers

Recently I was talking with someone who, like me, does human resources in the construction industry. They were asking questions that had arisen from a recent incident where an injured employee was taken to the hospital and presented a so-called "International Driver's License" as identification, wondering if they should allow that employee to continue operating a company vehicle. I did a little research to get to the bottom of this matter and learned that not only are these documents bogus, trusting those with such fake documents could expose employers to some major financial risks.

Someone who presents this kind of fake identification when being hired can present two major risks to employers: state and federal penalities for hiring an illegal alien, as well as considerable financial risks if they get behind the wheel of a company vehicle and get in a wreck. If a new hire cannot present a state-issued driver's license or ID card, employers should ask themselves how much of a risk they are willing to take to hire that individual before they proceed with bringing them onto their payroll.

Common Ground Alliance's Best Practices 9.0 released

The Common Ground Alliance released its Version 9.0, the latest update for standards for underground utility installation, locating and construction operations in the vicinity of underground facilities.

In addition to setting Best Practices to guide safe operations, they were used as one of the most important sources of guidance in updating South Carolina's underground utility damage prevention and safety laws last year.

If you're involved in these issues, go check out this important update.

States now mandating E-verify use

Following the Supreme Court ruling (Chamber of Commerce of the United States v. Whiting) in which justices ruled 5-3 that the state of Arizona could mandate the use of the federal E-verify system as a means of screening new hires, other states are following Arizona’s lead to mandate it’s use.

Legislation sponsored by Berkeley County's State Senator Larry Grooms require South Carolina employers to use E-verify. In addition, three other states mandated E-verify usage beginning this year: Alabama, Georgia, South Carolina and Tennessee.

South Carolina law sets some pretty tough penalties for those employers who don’t comply with the new law:

For a first occurrence by a private employer, after July 1, 2012, of failure to verify a new hire through the E-Verify federal work authorization program within three business days, the Department of LLR must place the employer on probation for a period of one year, during which time the private employer must submit quarterly reports to the agency demonstrating compliance with the law. A subsequent violation within three years of the law’s verification requirements must result in the suspension of the private employer’s licenses for at least 10 days but not more than 30 days.

A private employer who knowingly or intentionally employs an unauthorized alien must have his licenses suspended by the Department of LLR on a first occurrence for at least 10 days but not more than 30 days.

Another reason for tougher work zone enforcement laws

For those who think enough is being done to toughen work zone enforcement, think again.

This took place in our I-26 work zone last night. The truck shown in the first photo entered the lane closure, reportedly traveling through about 1 1/2 miles of closed lanes after demolishing the arrow board shown in the second photo.

The first mile of a closure is ordinarily empty space, set up as a buffer zone with the understanding that some drivers will somehow miss two miles of advance signs, message boards, barricades, cones and flashing arrows.

But the next half mile had workers in it. Of three groups of workers, one was missed by mere feet.

Last time I looked, luck is not an OSHA-approved safety device, yet all too often, it's one of the few safety devices our workers have.

S.C. legislators were asked to support a proposal that would double penalties for moving violations in work zones and dedicate those proceeds just to defray the cost of work zone enforcement. Too often, our workers work with no active law enforcement because there is no money in the construction budget for additional police officers.

But why should money be taken from building roads to pay when offenders could pay? This also could give the additional benefit of being able to keep troopers employed after several years of budget cuts have hammered the Highway Patrol.

More discussion to come on this subject. Count on it ...

Common Ground Alliance: Advocates for safe digging

Safe digging is a shared responsibility between many stakeholders, including utilities, landowners, contractors, locators, public safety and regulatory officials. Getting on the same page is a continual challenge, so it's best to get ahead of the game.

If you're not already involved, the Common Ground Alliance is a non-profit stakeholder group in Canada and the United States which advocates best practices and partnerships, with local chapters in most provinces and states. It's Best Practices, currently in Version 9.0, is a set of standards for safe digging developed by consensus between representatives from member stakeholder groups. These standards were referenced often in last year's team efforts to re-write South Carolina's underground utility safety laws.

The South Carolina chapter holds its quarterly meeting Monday at 10 at the SC811/PUPS offices in Columbia. As the current Vice-Chair and one of the charter members, I encourage you to get involved.

Enhancing work zone safety with Type III barricades



On-ramp taper before
Type III placement



A major hazard in highway work zones is when cars enter closed-off lanes clearly marked off by cones. As this small percentage is either not noticing the cones, running them over for sport, or for whatever reason don’t think a closed-off lane is off-limits to traffic. Thus the answer seemed simple: try solutions that are bigger, more noticable and more difficult to get through in order to get their attention.







On-ramp taper AFTER
Type III placement



Type III barricades (the big three-tiered ones shown above) are more visible because they’re much bigger than the standard tall channelizing cones. We had some available from past use on the project. Rather than send them to the company’s storage yard, where they’d just gather dust, I experimented with placing several in areas which were most prone to run-through by motorists.

The areas where the problems seemed worst were just before exit ramps and where entrance ramps were re-routed through closure zones.



The results were immediately noticable: every area where the barricades were placed saw ZERO entry by motorists. Since then, I’ve had my traffic control personnel placing them in high-risk areas and the results continue to show a ONE HUNDRED PERCENT success rate whereever they’re installed.