AGC Georgia’s Construction Professionals Conference – HR, Safety and Management.

400+ from 120 Firms Are Registered! Are You One of Them?
Registration Closes Tomorrow

(view a list of companies attending the conference)

AGC Georgia’s Construction Professionals Conference & Marketplace
Wednesday, April 23, 2014
7:00 am – 4:30 pm
Georgia International Convention Center
College Park

  • Incorporate new ways to ensure your company’s quality growth
  • Reward high performing employees with new tools and leadership development opportunities
  • Stay compliant with current and new labor, safety, HR and lien laws to avoid costly penalties and legal action
  • Exposure to 45 subject matter experts to use as ongoing resources during the day’s 40+ learning sessions
  • Learn new ways to deliver greater value to your company’s clients and business partners
  • Recognize general and specialty contractor field supervisors for their safety excellence
  • Learn to measure if your company is as safe as you think it is
  • Improve your hiring practices and avoid costly mistakes
  • Help employees work smarter, not longer hours
  • Meet with 300+ industry professionals to expand your network of contacts
  • Enhance your business development methods using effective social media

Read More

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What To Do When the Supervisor Breaks the Rules

My Supervisor Violated the OSHA Standard. What Do I Do Now?

From SHRM Atlanta

Supervisors are supposed to set the tone, provide on-the-job training and consistently enforce safety processes.  What happens when the supervisor is the one who breaks the rules? OSHA decisions and OSHA compliance officer training expressly state that the employer’s entire safety program is suspect when its supervisors violate the standards. The higher up the supervisor, the bigger the problem. Not only does the supervisor’s bad conduct negatively frame the inspection and OSHA’s ultimate decisions, but the supervisor’s involvement has legal consequences.

  • OSHA will argue that the supervisor’s involvement makes it a near “open and shut” case because OSHA will claim that the supervisor’s violation also proves that the corporation had notice or knowledge of the violation. OSHA has the burden to prove that a standard was violated, a hazard exists, employees were exposed and that the employer knew or “should have known of the violation with the exercise of due diligence.”
  • Corporations do not have a flesh and blood body. Corporations learn of violations through supervisors; therefore, any supervisor’s knowledge of a violative condition will be imputed to the corporation.
  • So OSHA will claim that the supervisor’s violative act also satisfied OSHA duty to prove that the employer knew of the violative condition and that may blunt one of your most effective challenges to an OSHA citation. Many times, a violation did in fact occur and a lack of knowledge may be the only hope to avoid citation.

Although some OSHA personnel may think so, supervisor knowledge is not the silver bullet that ends the case. A number of decisions have required OSHA to prove more than the supervisor committed the violation in order to prove “employer knowledge.” The 4th and 11th U.S. Courts of Appeals require that OSHA must prove that the act was “foreseeable to the employer, which necessitates proof that the employees’ safety processes were flawed.”


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Bad News + Prepping the Boss For interviews = a Bad Day For You.

The following article is from Kevin Sullivan, our VP Marketing and PR.  Even in this social media-driven age, I find employers to be woefully unprepared to respond to inquiries about a workplace fatality, union corporate campaign, an executive’s public bad behavior or the countless other types of “bad news,” which can destroy a hard-won brand.  every employer should have a simple plan in place for immediate media response.  With internet sites, you have about 15 minutes before publication and with Twitter and other media, even less ….  “No comment” looks awful, but you must also ensure that the responses do not create legal issues.  Finally, every locations’  managers must know the designated corporate contacts to call 24-hours a day.

Kevin’s article deals more with coaching executives on “what” and “how” to say it.

Preparing The Boss For Media Interviews

By: Kevin Sullivan

Smart executives and business owners know that a good public-relations program can build a brand and burnish a reputation. Good PR costs less than advertising and lends credibility to your organization, products, and services.

But even if executives believe in PR, if they are not trained or experienced it’s important to properly prepare them before granting any interviews. No executive should appear unprepared when representing the organization during an interview. Just as importantly, they should not come across as arrogant or aloof. A key to ensuring that the boss performs well is to train him or her for media interviews.

The following is a quick-reference guide for anyone dealing with the media. It is not a guide for serious crisis management, but is a good playbook for more routine media interviews. Think of them as “The ABCs of Media Interviews.” If the interviewee knows this alphabet, then he should not stumble by misstating facts, appearing unprepared or acting in an unfriendly manner.

So, now you’re the coach. Get your boss ready for the interview with these guidelines.

A.    People relate to people, so be yourself.

B.     Be relaxed, attentive, and alert.

C.     Prepare by reviewing notes, articles, company documents or anything else that will help you to sound like you’re on top of things. Formulate three or four key messages to touch on during the interview.

D.    Do not use jargon.

E.     Keep your sentences short and to the point. Avoid parenthetical phrases.

F.      Incorporate part of the question into your answer. For example, to answer the question, “Do you think that the new product will meet analyst expectations,” do not say, “Yes it will,” but answer with, “We anticipate the product will meet analyst expectations because…”

G.    You can control the interview. If the reporter doesn’t address your key points, bring them up. You can use an old politicians’ trick; acknowledge the question but shift to another topic. “That’s an interesting question, but what’s important is….”

H.    Do not feel pressured to say anything you don’t want to say. If a reporter uses long pauses to encourage you to elaborate further than you are willing, don’t fall into the trap.

I.       Do not speak “off the record.” This is an important rule that will keep you out of trouble.

J.       Make eye contact when you are interviewed in person.

K.    When being interviewed over the telephone, stand up. You will sound more alert and energetic.

L.     Set up important points with pauses or phrases such as:

·          “What’s most important to know is…”

·          “Let me put it into perspective…”

·          “Before we get off that subject/topic, let me add…”

·          “What I’m really here to talk about is…”

·          “Let me give you some background information…”

·          “Let’s take a closer look at…”

·          “That’s an important point because…”

M.   Use examples to support your assertions.

N.    Never respond with, “No comment.” If you can’t answer a question for any reason, explain why. For instance, you might be under a gag order or the reporter asks a question outside your area of expertise or responsibility.

O.    Do not get angry.

P.      Never speak negatively about anyone – especially your competition.

Q.    Never use inappropriate language.

R.     Do not be condescending to a reporter even if the journalist doesn’t understand everything you are discussing.

S.      Always return calls to journalists promptly and let them know that you are accessible – remember they have deadlines and may publish the story without your input.

T.      Do not try to get too “cozy” with a reporter; stay professional.

U.    Remember the ABC’s of Media Interviews: Accuracy; Brevity; Clarity.

Use this checklist when you’re preparing your boss for a media interview. Even if you’re not seeking the spotlight, executives should be in a position to use public relations to their advantage.

Posted in boycotts, emergency response, management and leadership, managing legal matters, public attacks, social media | Tagged , , , , , | Leave a comment

Will GM’s Car Recalls Encourage Whistleblower Claims?


During this week’s discussion about GM’s auto recalls, OSHA also released a Fact Sheet and guidance on “Filing Whistleblower Complaints Under The Moving Ahead For Progress In The 21st Century Act (MAP21).”  I’m willing to bet that most of you have never heard of this relatively new retaliation law, and when I recently polled a number of my competitors, as well as various OSHA retaliation supervisors, I learned that most of them had not yet seen complaints under this retaliation law.

However, now that OSHA has put out a Fact Sheet on how to file a complaint, it will presumably publicize filing MAP21 claims, as it has aggressively promoted other whistleblower claims.

Like many of the 20+ retaliation laws investigated by OSHA, MAP21 focuses on a particular industry; in this case, “motor vehicle manufacturers, part suppliers, and dealerships.”  The law prohibits these employers from retaliating against their employees for undertaking any of the following activities:


  • Providing information relating to any motor vehicle defect or alleged violations of . . . NHTSA vehicle safety standards and the Federal reporting requirements for auto manufacturers, to:


–      his or her employer (including auto manufacturers, part suppliers and dealerships), or


–      to the U.S. Dept. of Transportation.


  • Filing, testifying, assisting or participating in a proceeding concerning any motor vehicle defect or alleged violation of Chapter 301, including NHTSA vehicle safety standards and the Federal reporting requirements for auto manufacturers, or


  • Objecting to or refusing to participate in any activity that he or she reasonably believed to be in violation of Chapter 301 or any order, rule, regulation, standard, or ban under Chapter 301.

There have not yet been any reported cases and the last time I checked, OSHA and the Solicitor’s Office had not developed internal guidelines.  Therefore, your guess is as good as mine as to what conduct that would constitute protected activity under the above definitions.  As an example, how broadly will the term “information” provided to your employer be defined?”  Information relating to any motor vehicle defect or alleged violation of Chapter 301 or any order, rule, regulation or standard or the Federal reporting requirements for auto manufacturers” or “ban under 301” could encompass most communications in a manufacturing or other setting.  Quite vague and broad ….

Given the ongoing publicity about auto recalls and penalties accessed against auto manufacturers, motor vehicle and parts manufacturers and dealerships should be careful not to take adverse action against an employee who may later argue that they have engaged in protected conduct.  Carefully document actions taken to show that any alleged protected actions were not the cause of the adverse action.


Posted in discipline and discharge, discrimination, manufacturing, OSHA, whistleblower/retaliation | Tagged , , , , | Leave a comment

9 Things you Absolutely Must Do if You Have an OSHA Inspection

by Howard Mavity

Senior Partner, Fisher & Phillips

Readers already know to take photos whenever an OSHA Compliance Officer takes shots, and a few other standard labor lawyer recommendations, but I’d like to take a moment to talk about “why” we urge employers to take certain steps before and during an OSHA inspection.

1. Plan in advance

Every company site should have a number of managers who know the basic steps to take whenever any government investigator shows up. The most important step is for site managers to know who to call to obtain guidance. No executive or in-house counsel will be pleased to learn of an investigation upon receipt of a citation.  This also means that every superintendent and project manager needs to at least know the “basics” of an OSHA inspection and who to call within the company.

Fatalities call for even better prepared systems. I have learned that no matter how tough one may be, they shut down when a co-worker or subordinate is killed. At most, site management can deal with evacuating and protecting employees, and dealing with first responders.

The company needs a system in place so that with one call, the site manager activates corporate support, including legal and risk management guidance, assistance to employees and families, and press and media management.

2. Make sure management takes an inspection seriously

Continue Reading at Georgia Construction Today.


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Construction Contractors Subject To New OFCCP Rules

March 31, 2014
Because of a recent court decision, federal construction contractors must comply with several new regulations that many consider burdensome. An effort to exempt construction contractors from some of the new regulations was tossed out by a federal judge.  Associated Builders and Contractors, Inc. v. Patricia A. Shiu, et al.


Construction contractors with federal contracts or subcontracts have operated for years under somewhat different affirmative-action regulatory-compliance requirements than supply and service contractors. Recently, however,  new regulations from the Office of Federal Contract Compliance Programs (OFCCP) applying to disabled and veteran applicants and employees were ruled to apply equally to construction contractors. The regulations took effect March 24, 2014.

Consequently, construction contractors must now gather and track additional information, and begin the process at the applicant rather than new hire stage, in order to document efforts to meet the 7% utilization goal for Individuals with Disabilities (IWDs). The new OFCCP regulations implementing the Vietnam Era Veterans Readjustment Assistance Act (VEVRAA), establishing hiring benchmarks (currently 7.2%) and data collection and analysis for various categories of protected veterans will also apply to construction contractors as of March 24, 2014.  The new regulations addressing affirmative action obligations for veterans were not challenged in ABC’s lawsuit.  However, ABC sought clarification by the courts, contending that some of the new disability regulations should not apply to them. They lost.

The ABC’s Lawsuit Against the OFCCP

In November of 2013, the Associated Builders and Contractors (ABC) filed a complaint for declaratory and injunctive relief in the federal district court for the District of Columbia requesting that the court find certain provisions of the new affirmative-action regulations related to disabled individuals unlawful.

ABC also requested the court to vacate and enjoin implementation of the data collection and utilization-analysis provisions of the new rules, to the extent they would be applicable to government contractors in the construction industry. The rules were issued on September 24, 2013.  The court denied ABC’s motion for summary judgment, and dismissed its complaint on March 21, 2014, just three days before the new regulations went into effect.

The new rules expand and broaden the affirmative-action obligations of federal government contractors, particularly for those in the construction industry, which until now had been treated differently because of what ABC described as “a long standing distinction between construction and other industries.” The affirmative-action rules and regulations previously in effect had exempted the construction industry from some types of data collection and analyses required of non-construction supply and service contractors because construction contractors employ a uniquely fluid and temporary workforce.

ABC’s Argument – The Construction Industry Is Different

In challenging the data-collection and utilization-analysis provisions of the new rules, ABC alleged that such obligations for contractors in the construction industry were wasteful and burdensome, and would not increase work opportunities for disabled individuals in the construction industry. ABC also alleged that small businesses, with fewer resources available to address compliance issues, would be especially hard hit; and that there was no reason to reverse the long-standing precedent to exempt construction contractors without an adequate explanation from the agency.

ABC also argued there was no evidence in the administrative record that contractors were currently failing to meet their obligations under Section 503 of the Rehabilitation Act, that the 7% hiring goal was an arbitrary goal, especially for the construction industry, and that there was no statutory authority for OFCCP to impose such burdensome data-collection and analysis requirements which didn’t account for the construction industry’s unique hiring and employment practices.

The Court’s Ruling – OFCCP Wins On Every Point

The court didn’t buy any of ABC’s arguments. It found that OFCCP clearly had rulemaking authority, that its interpretation of the statute was permissible, that the term “affirmative action” encompasses the use of benchmarks to gauge progress as well as tools to gather and analyze data to track such progress, and that the rule was not arbitrary.

The court also found that because construction contractors already gather and utilize similar data for minorities and women under E.O. 11246, it was reasonable for OFCCP to discredit ABC’s argument suggesting an inability to comply with the rule because of the unique circumstances of the construction industry.

The court supported OFCCP’s rejection of arguments that it would be impossible for construction contractors to find enough qualified individuals with disabilities because construction work is uniquely hazardous and physical compared to other industries. The court credited OFCCP’s position that ABC’s argument was “fundamentally based on the flawed notion that individuals with disabilities as a group are incapable of working in these jobs.”

The court noted that many disabilities would have little effect on employment by construction contractors, citing as an example that a person with auditory processing disorder or a stutter would typically not need an accommodation to work as a carpenter or machine operator respectively; all of which led to a conclusion that OFCCP was justified in refusing to exempt construction contractors.

The court also found that OFCCP’s methodology for reaching the 7% utilization goal for IWDs was reasonable, and that the new rules would not impose a significant economic burden on businesses.

Based on the court’s ruling, all provisions challenged by ABC on behalf of construction contractors became effective on March 24, 2014, along with all other provisions for all other government contractors.

What Must Construction Contractors Do To Comply?

There are some contract clause and language revisions, and some new posting requirements, which are effective immediately.  Additionally, beginning at the time of a contractor’s next annual AAP review after March 24, 2014, the regulations related to IWDs require federal contractors and subcontractors (including construction contractors) to track disability status using the OFCCP’s mandated form.  If you fall into this category you must also:

1. Ask applicants at the pre-offer stage to voluntarily self-identify if they have a disability;

2. Ask new hires the same question;

3. Ask your workforce within one year of March 24, 2014 the same question; and

4. Ask your workforce again every 5 years, with at least one interim reminder.

The regulations related to protected veterans are discussed in the Appendix of the federal regulations, but there is no OFCCP-mandated form. The VEVRAA regulations require the employer to:

1. Ask applicants at the pre-hire stage a yes or no question about whether they wish to identify as a protected veteran using the OFCCP-required veteran category definitions;

2. Ask new hires to identify all of the specific categories of veteran to which they believe they belong.

Finally, contractors must annually review their efforts and consider whether they are meeting the 7.2% hiring benchmark for veterans and the 7% utilization goal for IWDs, and to consider and adopt corrective measures if they are not. All records related to these regulations must be retained for three years.

For more information contact your regular Fisher & Phillips attorney.

This Legal Alert provides an overview of a specific court ruling. It is not intended to be, and should not be construed as, legal advice for any particular fact situation.

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Should You Care About Turkey?

The U.S. is understandably distracted by the situation in the Ukraine, but the events unfolding in Turkey may be more important to the U.S.

I just returned from a week in Turkey and I am concerned about the U.S. public’s lack of interest in the events unfolding and our general ignorance about the Country … or of its immense strategic importance.

The Prime Minister, who has been taking Turkey down an increasingly authoritarian path, is near panicked about tomorrow’s municipal elections, and has even been accused of provoking war with Syria in order to gain votes.

Let address some obvious fallacies and better explain why we should be following this Sunday’s elections.

Turkey isn’t the “Middle East.”

Turkey is the literal crossroads of the East and West, but its strongest historical ties are to Europe.   Turkey is not by its history or by its development a “Middle Eastern” country. Turkey is predominantly Muslim but that does not mean that Turkey has more in common with Egypt and Iraq than with Europe.  A traveler will encounter far cleaner cities than are found in the U.S. or Europe. People are sophisticated. The economy is diverse and not driven by oil. Of course Istanbul is exotic and unique, but it also has the feel of other international cities, such as London, Paris and Toronto.  It’s a country that mixes daily prayer calls and Ottoman history with this modern structure to create a society that is far more than the mere sum of its parts.

Consider the importance of its location.

Americans have less interest in Turkey now that it is no longer a hot spot in the old Cold War. However, Turkey’s strategic value is more important than ever.  Need I point out that Turkey’s neighbors include Syria and Iraq, and that the Country’s policies affect NATO, Israel, and yes, to a lesser extent, the challenges presented by the  shirtless Russian bear.

Turkey is unique, and if it changes, what will its effect be on other countries?

Turkey is a  success story of a Western-friendly modern secular Muslim country. Turkey’s history is extraordinary: the Golden Age of Rome, 1000 years of the Eastern Roman or Byzantine Empire, and the sprawling Ottoman Empire. Its archaeological sites are among the best and most accessible in the world (and far better maintained than those in Italy, Greece and Egypt).  And yet, none of these stories is as significant as how Mustafa Kamal Ataturk created this unique country after World War I.  Do you think a less free Turkey will further embolden radicals and old style dictators? What will be the effect on Egypt as it wrestles with its competing voices?

The Prime Minister is creating an authoritarian state and turning back the legacy of Ataturk.

The prime minister seems determined to hold onto power by whatever means are necessary. Surely you are aware that as the March 30 elections approach, he first shut down Twitter and now YouTube to block well deserved criticism.  Facebook is probably next. Wouldn’t you be concerned if this same story came out of France, Italy or Canada?  Turkey is no different. The Prime Minister has been systematically centralizing power and attacking Turkish institutions, but the Country still has much freedom of speech.

Turkey is not Libya or Tunisia in another “Arab Spring.”  If the youth must again go to the barricades to defend their freedoms, society will be going backwards.  The Arab Spring ignited often-unanticipated reactions, so what would be unanticipated effects of the descent of a modern Western Country into chaos or a closed society?

Turkey has grown and modernized at a blistering speed since I last visited in the early 1980’s, and in fairness, the current administration gets some credit. However, its construction-driven economy bears worrisome similarities to the 2007 U.S. economy. Serious social unrest could bring the economy tumbling, and do not fool yourself into thinking that the US and the EU would be spared the effects of such problems.

We owe it to the youth.

I talked with so many energetic well-educated young Turkish men and woman. I would be proud to have them as adult children.  They are dispirited and many wonder if they should leave Turkey.  They don’t understand how things have changed so swiftly. Our generation must not stand still.

So what should we do?

I suggest that we actively reach out to our legislators with our concerns. The U.S. can and should take actions to publicize what’s going on in Turkey and to support democratic efforts.

Second, we must quit being so damned parochial and learn more about this country. We are affected by events in the Turkeys of the world.  Moreover, Istanbul is recognized as one of the most exciting cities in the world. It’s modern, safe and friendly to U.S. tourists … even during the last few days, as elections have loomed. Go visit and don’t talk about the Country as if it is Turkmenistan or Uzbekistan.  The airports are modern and efficient and the streets are so clean that they made me jealous.  And the people are fascinating!  What a wonderful mix of European, Asian and Arab people, ranging from blue-eyed tall Vikings to beautiful dark eyed women.  English is a second language.  The sense of history is palpable.  So what’s keeping you?  Go visit.

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