You and the Law
New Regulatory Issues That Can Impact You
1) OSHA compliance officers have a new procedural manual on what is required of them when conducting OSHA inspections. Some of the significant changes:
• State-plan citations history may be used to document employer knowledge to support a willful violation, and to determine eligibility for the history penalty reduction factor. It may not be used to support a repeat violation.
• The strike or labor-dispute section has been revised to emphasize that compliance safety and health officers (CSHOs) must make every effort to ensure that their actions are not interpreted as supporting either side.
• The CSHO is required to review any written hazard assessment that the employer has made in compliance with §1910.132(d) to determine appropriate personal protective equipment.
• Expanded guidance is provided on review of voluntary compliance programs, including onsite consultation.
• Extensive guidance is provided on interviews of nonmanagerial, hourly employees.
• The discussion of the four factors involved in determining a serious violation has been expanded and clarified, with examples.
• Violations cited by state-plan states cannot be used as a basis of OSHA repeat violations by federal OSHA, even if the same standards are cited by a state agency. Only violations that have become a final order of the review commission are to be considered.
• Procedures for accepting and handling e-mail notices of contest are provided.
• Specifically prohibits any discussion of possible criminal referrals in fatality cases during the informal conference.
2) OSHA published its manual on how lockout (control of hazardous energy inspections) will be conducted. Also, OSHA published its LO/TO Directive No. CPL-02-00-147. Both inspection manuals are available at OSHA’s website, www.osha.gov.
3) OSHA inspection priorities for 2009 include:
• Lockout/tagout (LO/TO)
• Hexavalent chromium (related to welding stainless steel and high-chrome steel, or carbon steel in an enclosed space)
• Combustible dust
• Hearing-conservation programs.
The White House
President Barack H. Obama, on January 30, signed these two pro-union executive orders:
1) Economy in Government Contracting. This is the most pro-union and controversial order. It is intended “to prevent taxpayer dollars from going to reimburse federal contractors who spend money trying to influence the formation of unions.” Specifically, the order prohibits federal contractors from expending federal funds to persuade their employees to exercise or not the right to organize and bargain through a representative of their own choosing.
Several examples of “persuader” expenditures prohibited by the executive order include preparing or distributing persuader materials, hiring or consulting legal counsel or consultants, holding meetings, or planning or conducting activities by managers or supervisors during work hours. These types of expenditures are identified as “unallowable” under any federal government contract. Although federal contractors cannot use federal funds for these purposes, they may use federal dollars to “maintain satisfactory relations” between the contractor and its employees. As stated in the order, such expenditures could include the cost of labor-management committees or employee publications (provided that they do not attempt to persuade employees regarding unionization).
However, this order does not prohibit federal contractors from engaging in the above-prohibited activities provided that they do not claim reimbursement for those expenditures from federal funds. The real restriction is on the payment or repayment of permitted costs by the federal government. In effect, during a union-organizing campaign, a federal contractor will be able to share its views on the disadvantages of unionization with its employees…but will have to pay for such campaign activities on its own.
2) Nondisplacement of Qualified Workers under Service Contracts. This order creates rights for employees of federal contractors to keep their jobs when a contract changes hands. Thus all new federal service contracts covered by the Service Contract Act must contain a specific provision granting employees of a federal contractor that has lost the service contract the right of first refusal for employment with the successor contractor. The successor contractor may not hire new employees, other than management and supervisors, until all employees of the predecessor contractor have been offered employment.
Willful violations of the order result in complete disbarment from federal contracts for a period of up to three years. This seems to preserve representative status security for unions in collective bargaining relationships with federal contractors. A successor federal contractor will need to recognize the existing union as soon as it takes over the federal contract and honor the terms of the predecessor-contractor’s union agreement.
U.S. Department of Labor or EEOC
Congress passed the Lilly Ledbetter Fair Pay Act of 2009, which became the first new labor law signed by President Obama. You may recall the 2007 U.S. Supreme Court case of Ledbetter v. Goodyear Tire and Rubber Co., which held that a tire factory manager’s unequal pay claim was time-barred because she did not file it within 180 days of the alleged discriminatory decision or practice implemented to pay her less.
What it does is restart the 180-days clock to file an unequal-pay bias claim with every paycheck or payment based on the unequal pay scale. (Retirement benefits? Pensions?) It also appears to allow others “affected” by the alleged discrimination pay scale to sue. (Parents? Children?) This law may spawn more litigation to resolve these questions.
On the Horizon
The proposed Federal Employee Free Choice Act is drawing a lot of attention. This bill would make it easier for workers to unionize by allowing for certification of a union as the bargaining representative of a unit of employees if the NLRM finds that a majority of those employees signed valid authorization cards designating the union as its bargaining rep (without an election).
This article only provides general information about complex labor laws. It should not be considered as a legal opinion or legal advice. We strongly recommend that readers confer with legal counsel on the application of the law to their individual situations and the use or modification of this article. MF
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