What the New Michigan Right-to-Work Law Does… and Doesn’t Do….

Posted on December 13, 2012 by mavity2012

Many people confuse Right-to-Work laws with the Employment at Will concept. Employment at Will is a common law concept standing for some variation of the rule that either the employee or the employer can terminate employment at any time for any reason, with or without notice. Right-to-Work laws prohibit a Union from including in the collective bargaining agreement a provision making it a condition of work that an employee join the union (and pay dues) or be terminated. When employees don’t have to join and pay dues, they often do not do so.

When Wisconsin passed its much attacked public employer legislation, public sector union members quit paying dues in droves.

There are a lot of ripple effects to this legislation. Because Right-to-Work laws have some limiting effect on union organization, new businesses admit that they may choose a state based in part on its Right-to-Work status, which has certainly benefitted the South. Some pundits speculate that Michigan’s move will bring pressure on Ohio to pass similar legislation because neighboring Indiana passed a Right-to-Work law and is touting the law as another reason to locate business in Indiana.

There are limits to the new Michigan law. As with the recent Indiana right-to-work law, the Michigan law applies only to agreements that take effect or are extended or renewed after the effective date of the Act. For future contracts, however, the impact will be substantial: public- and private-sector employees in the state will no longer have to pay union dues, or their equivalent, to hold certain jobs, and it will be unlawful for a collective bargaining agreement to include union-shop or mandatory dues check-off arrangements.

We have pasted an Alert providing more detail at the Fisher & Phillips LLP website: http://www.laborlawyers.com/shownews.aspx?Show=20281

Posted in concerted protected activity, construction, NLRB, plant openings and closures, plastics, union organizing, unions | Tagged , , , , , , , , , | Leave a comment

OSHA Can Now Connect the Dots and Track Your Company’s Inspection Trends

Posted on December 12, 2012 by mavity2012

OSHA has long been hampered by its difficulty in coordinating between different Federal Area Offices and State Plans. Inspections at companies or construction contractors with many locations tend to be viewed one work site at a time, other than for purposes of determining “repeat” classification.

I assume that system limitations are one of the reasons that neither the current administration or the previous one has yet really carried through on threats to aggressively follow-up on other locations of companies placed on OSHA’s Severe Violators Enforcement Program list. A lack of proper programs and a better data base has largely prevented any sort of systematic tracking of company trends and development of a corporate wide focus. OSHA did not have access to much more immediate data than do private employers doing establishment searches at http://www.osha.gov.

Not anymore….

Since 2006, the DOL has spent about $70 million developing and rolling out a software and hardware system known as the OSHA Information System (OIS) which reportedly will increasingly allow OSHA managers and inspectors to compare inspection trends in different jurisdictions, better track potential repeat offenders, and update the nationwide system several times a day.
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The implementation has been tough and even in May 2012, the DOl commented on problems in merging old data from the current system into the new OIS.

Because of the transitory nature of the business, construction employers have presented special challenges to OSHA and this system may make it easier for each Area Office and CSHO to determine whether a contractor has been cited or inspected before. Apparently, the old system maintained the inspection location and a mailing address, but not a business address. This omission especially affected responses to smaller or lesser known contractors working in multiple OSHA jurisdictions.

The new OIS also offers a way to sort through misspelled business names or names that are close to what compliance officer is searching for, features missing from the old system.

OSHA–DC gains more tools to track Area Office performance, such as by more accurately comparing the performance of Area Offices by looking at trends involving which violations were cited, the size of penalties, and how many violations on average were cited from inspections.

The system also allows the electronic storing of citations, inspection reports, photographs, and other case file material, which is a substantial improvement for CSHO’s.

OSHA hopes to expand the OIS to the 27 states and territory plans sometime in 2013, but that may be more complicated.

Alas, employers will not have access to OIS. The http://www.osha.gov site will now include additional inspection information that highlights why cases have not been closed, such as failure to pay fines or to complete abatement.

OIS is not the coming of “Big Brother,” but once Area Offices work out the kinks, the OIS system will make their jobs easier and will expose employers operating in multiple jurisdictions to more risk.

Posted in combustible dust, government inspections, manufacturing, OSHA, plastics, Uncategorized | Tagged , , , , , | Leave a comment

Free Webinar Making Predictions About Federal Agencies in 2013

Posted on December 11, 2012 by mavity2012

While there remains some lingering uncertainty, the recent elections did lend some clarity to an evolving regulatory landscape. Now that the dust has settled, what can we expect from a second term for the current Administration? And with additional gridlock expected on Capitol Hill, where will the next wave of regulation come from?

My partner, Steve Bernstein is conducting a free webinar (below) today (full – 1000 signed up) and next Tuesday and will predict how agencies will respond.

Steve’s Bio is at: http://www.laborlawyers.com/sbernstein . Steve was my first protege 22 years ago and has long since left me behind in skills and development. He is known as a superb attorney in dealing with unions and a man of outstanding character. One of my closest friends in the Firm.

He will review the NLRB, the DOL and the EEOC plan to carry out their agendas through rulemaking and regulations, without so much as a single vote in Congress. Find out what these agencies have in store for you, and how these changes will impact a wide spectrum of employment practices ranging from hiring procedures to discharge investigations. Participants will receive practical pointers on how best to update their policies to effectuate compliance with these new requirements while continuing to manage a quality workforce under challenging economic conditions.

These two separate hour long webinars are free, but registration is required. Please click the link below, for the date of your choice, to be redirected to a registration page. Once your registration is complete you will receive an email confirmation with instructions on how to join the webinar. Participation in each of these webinars has been approved for one hour of HRCI credit.

Webinar Dates and Times:

•Tuesday, December 11 – 2:00 p.m. EST / 11:00 a.m. PST – this session is now full
•Tuesday, December 18 – 2:00 p.m. EST / 11:00 a.m. PST – Click here to register
Please contact Gail Rice at 404-231-1400 or grice@laborlawyers.com if you have any questions.

Posted in aging workforce, concerted protected activity, construction, cultural changes, discipline and discharge, EEOC, employer benefit plans, employer policies, food processing, harassment, hospitality, manufacturing, NLRB, Patient Protection and Affordable Care Act of 2010, plastics, recruiting, retail, social media, Uncategorized, unions | Tagged , , , , , , , , , , | Leave a comment

Biggest 2012 Employment Law Events (set to the theme of post apocalyptic movies)

Posted on December 11, 2012 by mavity2012

The End of the World As We Know It? PART 1

My Portland partner, Rich Meneghello, produced the entertaining update below on the biggest employment law events in 2012, gleefully described in the context of disaster/post apocalypse movies… come on, even labor lawyers get to behave a little giddy by the end of the year. Enjoy!

( http://www.laborlawyers.com/rmeneghello )

If you’re reading this after December 20, that means the Mayans got it wrong and the world isn’t going to end in 2012. That’s the good news. The bad news is that you still have to go to work tomorrow, and you’ve been putting off dealing with all of those labor and employment problems in the hopes that the end of the world would have happened by now. (Oops!)

Or have you been hunkered down deep in an underground bunker for the better part of the last year ignoring your human resources duties, and now you feel out of the loop about what happened over the past 12 months?

Either way – fear not! Fisher & Phillips once again presents you with our annual review of the last year in the world of labor and employment law. This time we’re handing out awards based on one of the most popular genre of movie – the end-of-the-world variety.

The “Deep Impact” Award goes to the biggest employment law news story of the past year – and maybe the biggest story of the decade – the Supreme Court’s decision upholding President Obama’s Affordable Care Act (ACA) in June. Many employers have failed to invest much time or energy into analyzing how healthcare reform would impact their businesses, first anticipating that the Court would invalidate much or all of ACA, and then hoping for a Mitt Romney victory in November.

Now that the uncertainty has been lifted, it’s time to get to work and focus on the many healthcare compliance obligations and possible economic impacts. While there are many issues to address immediately, the “big ticket” items won’t go into effect until 2014, including the “pay or play” mandate, new nondiscrimination requirements, and automatic enrollment. Use 2013 to adequately plan for additional economic burdens and consider strategic plan design changes as necessary.

And speaking of President Obama’s reelection, the “Day After Tomorrow” Award goes to the Presidential reelection and the implications for the next four years (and beyond). There are numerous ways in which the nation’s employers will feel the impact – federal agencies will be given even more leeway to enforce regulations, enforcement priorities will continue to be pointed towards employment and labor matters, and several liberal members of the Supreme Court may choose to retire in order to retain a seat for the employee-friendly wing of the Court (specifically Justices Ginsburg and Breyer).

The “War of the Worlds” Award goes to the National Labor Relations Board (NLRB) and their continued all-on assault on employers across the country. One year ago we were preparing to comply with a broad posting law and the specter of “quickie” elections, both of which threatened to change the landscape of labor law as we know it. Luckily for employers, both were struck down by courts for various reasons, but don’t be surprised if they spring up from the ground like Martian war ships hell bent on destruction in 2012 (the AFL-CIO President already predicted that the Employee Free Choice Act will be implemented in the coming 4 years).

The NLRB didn’t let those court setbacks stop them from attacking employer handbook procedures, at-will language, company social media policies, and arbitration agreements – all of which faced the board’s laser beam wrath in the past year. Although the agency published several advice memos on at-will disclaimers that offered some relief in late October 2012, don’t be surprised to see the war on employers continue in 2013.

Posted in concerted protected activity, construction, discipline and discharge, manufacturing, NLRB, Patient Protection and Affordable Care Act of 2010, plastics, recruiting, retail, social media | Tagged , , , , , | Leave a comment

Should An Employer Use Criminal Record Checks? Part 2

Posted on December 11, 2012 by mavity2012

The post below is Part 2 of my law partner, Bert Brannen’s tips to safely using criminal record checks in the context of increased regulatory scrutiny.

3. Revise The Inquiries On Your Employment Application. The EEOC Guidance strongly discourages employers from asking about criminal convictions on job applications. However, most employers are still going to find it beneficial to inquire about criminal convictions. If an employer chooses to make inquiries about conviction records, it should include a very specific disclaimer along the lines of: “Answering ‘yes’ to any of the following questions does not constitute an automatic bar to employment. Among other things, we will consider the nature and gravity of the offense or conduct; the time that has passed since the offense or conduct and/or completion of the sentence; and the nature of the job you are seeking. If you answer ‘yes’ to any of the following questions, be sure to fill in the explanation field.”

4. Do Not Consider Arrest Records. Simply put, employers may not exclude an applicant based solely on an arrest record. An arrest, unlike a conviction, does not establish that the alleged conduct actually occurred. Moreover, the EEOC’s position is that African Americans and Hispanics are arrested at a rate that is two to three times their proportion to the general population. Thus, using arrest records would have a disparate impact on those two categories protected by Title VII.

5. Assess Each Person’s Individual Situation. The EEOC suggests in the Guidance that employers be required to conduct an “individualized assessment” before disqualifying any applicant based on criminal history. The EEOC suggests that employers consider individualized evidence including, but not limited to:

• the facts or circumstances surrounding the offense or conduct;
• the number of offenses for which the individual was convicted;
• age at the time of conviction or release from prison;
• evidence that the individual performed the same type of work, post-conviction, with the same or different employer, with no known incidents of criminal conduct;
• the length and consistency of employment history before and after the offense or conduct; rehabilitation efforts, e.g., education/training; employment or character references and any other information regarding fitness for the particular positions, and;
• whether the individual is bonded under federal, state or local bonding programs.
If an individual does not respond to the employer’s attempt to gather additional information about the background, the employer may make its employment decision without that information.

Posted in construction, EEOC, employer policies, food processing, hospitality, manufacturing, recruiting, retail, Uncategorized | Tagged , , , , , | Leave a comment

Why Does OSHA Want a Digital Copy of My Safety Program?

Posted on December 7, 2012 by mavity2012

Recently OSHA Compliance Officers in two different Area Offices specifically requested digital copies of employers’ “Safety Program” instead of written copies. The employers understandably wondered why the Compliance Officers expressly wanted digital copies. An obvious concern was that the Compliance Officers wanted to expand the scope and to more easily be able to review the entire safety program, perhaps in anticipation of the eventual implementation of I2P2.

Various Area Offices advised that they were unaware of any push by OSHA to obtain digital copies of safety programs either to protect the environment or in order to “troll” through the safety programs. Providing digital copies of safety programs to OSHA is probably not a good idea. First and most importantly OSHA Area Offices have limited facilities, and you really do not want to irritate a Compliance Office by requiring him to print 100 pages on a slow printer. Moreover, for various legal reasons, many of which have nothing to do with OSHA, employers generally should utilize PDF copies.

· What if my “safety program” isn’t in one place? It’s integrated into various processes.

The inquiry raised other important questions. Some employers are increasingly incorporating their “safety procedures” into all aspects of their operations and processes, from bidding to purchase to production. If one does not know that, an observer might be surprised or concerned about certain policies not being in the designated “safety policy.” As employers integrate safety into all of their policies and procedures, they need to also ensure that they can explain to OSHA or interested customers where “safety policies” exist in writing.

· What about I2P2?

While I doubt that these requests had anything to do with preparation for I2P2, we do know that the current administration is serious about implementing I2P2, and is increasingly looking at an employers’ entire safety processes as part of the SVEP process or where no vertical OSHA standard clearly fits a situation. Some employers maintain broad corporate safety policies, but do not prepare job site or machine-specific procedures. Some safety programs neglect contractors and temporary employees. Some safety programs bear almost no resemblance with life on the work floor.

We will talk more about these subjects in the future, and I would appreciate any observations or observations about effective safety programs and integrating safety into all processes.

Posted in construction, employer policies, food processing, hospitality, manufacturing, OSHA | Tagged , , | 1 Comment

Should Construction Owners Continue To Use Criminal Background Checks? Part 1

Posted on December 6, 2012 by mavity2012

My friend and partner, Bert Brannen is going to provide a three-part discussion on criminal background checks, including practical compliance tips.
( http://www.laborlawyers.com/dbrannen ).

PART 1
Earlier this year, the EEOC issued Enforcement Guidance on the “Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964, as amended (Title VII).” Construction owners need to review this Guidance and to revise their current policies and procedures on criminal background checks.

Background

According to one survey, 90% of employers perform criminal background checks on job applicants. The risk management reasons asserted for using criminal background information are to prevent theft or fraud, workplace violence and potential liability for negligent hiring. Construction employers may also be required to perform background checks to comply with owner or general contractor requirements or state and local laws or regulations.

Title VII prohibits employment discrimination based on race, color, religion, sex or national origin. Having a criminal record is not specifically listed as a protected basis. Therefore, whether an employer’s reliance on a criminal record to deny employment violates Title VII depends on whether it is part of a claim of discrimination based on one of the protected categories. Title VII liability can arise from one of two different theories: “disparate treatment” or “disparate impact.”

Disparate treatment occurs when an employer treats a person in a protected category differently than someone who is not in that same category. On the other hand, disparate impact liability arises when an employer maintains an apparently neutral policy or practice that has the effect of disproportionately screening out a group protected by Title VII and the employer fails to demonstrate that the policy or practice is job-related for the position in question and consistent with business necessity. To maintain a successful program of conducting criminal background checks, an employer must avoid policies or practices that might be considered a violation of Title VII under either of these two legal theories.

Over the past 25 years, courts and the EEOC have provided guidelines on employer use of criminal background employment decisions under Title VII. The EEOC’s recent Guidance restates the Commission’s position and supersedes its previous policy statements on this issue.

Compliance Tips.

Bert will outline seven practical tips for employers based on the EEOC’s Guidance. Here are the first two….

1. Know and Comply With Applicable Laws.

As stated previously, employers can violate Title VII in two different ways by not doing criminal background checks properly. A growing number of state laws also impose restrictions or prohibitions on the use of criminal background checks. The most aggressive of these laws are called “ban the box” laws and have been adopted in California, Connecticut, Hawaii, Massachusetts and New Mexico and in cities such as Chicago, Philadelphia and Seattle.

On the other hand, some laws contain stringent requirements for conducting thorough background checks. For example, existence of a criminal record may result in the denial of a federal security clearance, which is a prerequisite for a variety of positions with the federal government and federal contractors. Similarly, port workers can be denied Transportation Workers Identification credentials based on their conviction record. These are a few examples of laws that may actually prohibit an employer from employing certain individuals with criminal backgrounds. Obviously, given the fact that state and federal laws can come into play in a variety of ways, construction employers need to be aware of which laws apply to their businesses or specific projects.

2. Do Not Use A Blanket “Any Conviction” Standard.

The EEOC’s position is that a blanket policy denying employment to all applicants with criminal conviction records violates Title VII. That said, the EEOC recommends that employers utilize a targeted screening process that takes into consideration the position for which the applicant has applied; the nature and gravity of the criminal offense or conduct; and the time that has passed since the offense or conduct and/or completion of the sentence.

TO BE CONTINUED….

Posted in construction, discipline and discharge, EEOC, employer policies, harassment, hospitality, manufacturing | Tagged , , | Leave a comment

Employer Benefit Plan Actions For the End of the Year

Posted on December 6, 2012 by mavity2012

ARE YOU READY FOR 2013?

2013 marks not just the start of a new calendar year, but also compliance obligation deadlines for some employee benefit plans. The F and P Benefits Group has outlined a number of key provisions impacting welfare and retirement plans, as well as changes to your payroll system.

This isn’t sexy material, but errors could be costly.

Medical Plans

 A Summary of Benefits and Coverage (SBC) must be provided to all group medical plan enrollees by the first day of the first annual open enrollment period beginning on and after September 23, 2012. This means if your medical plan is operated on a calendar year basis, you must provide SBCs to enrollees as part of your upcoming annual open enrollment period for coverage that takes effect January 1, 2013.

 Health FSAs must be redesigned for the 2013 plan year to limit annual account balances to $2,500. Make sure to update your plan document as well.

 Ensure that your group health plan SPDs have been properly amended to reflect any applicable changes under the Patient Protection and Affordable Care Act of 2010 (PPACA).

 Claims’ correspondence (claims and appeals responses) must use “culturally and linguistically appropriate language” when 10%+ or more of employees reside in a county literate only in the same non-English language. The HHS website provides a list of all U.S. counties which meet or exceed the 10% threshold. If you send a claims or appeals response to an address in a county that meets the 10% threshold, you must include a one-sentence statement in the relevant non-English language indicating how to access language services. You must also provide oral language services (such as a telephone customer assistance hotline) and, upon request, a notice in any applicable non-English language.

 The Women’s Health and Cancer Rights Act of 1998 (WHCRA) requires group medical plans to provide an annual written notice to participants and beneficiaries of the availability of medical and surgical benefits under the plan with respect to mastectomy and breast reconstruction. Including the WHCRA notice as part of your open enrollment materials is one way to fulfill your annual notice obligations.

 Sponsors of group medical plans must notify employees annually concerning the availability of state premium assistance through Medicaid or CHIP. The Children’s Health Insurance Program Reauthorization Act of 2009 (CHIPRA) imposes this notice requirement, which can be met by including the DOL’s model “Employer CHIP Notice” as part of your annual open enrollment materials. For calendar year plans, the Employer CHIP Notice must be provided no later than January 1, 2013 .

Qualified Retirement Plans

 If you sponsor a Safe Harbor 401(k) Plan, you must prepare and distribute the annual safe harbor notice to all eligible employees for the 2013 plan year by no later than December 1, 2012.

 401(k) plans operated on a calendar year basis must provide participants and beneficiaries with an annual written notice about the qualified default investment alternatives (QDIA) offered under the plan by December 1, 2012. This notice cannot be provided as part of an SPD or SMM.

 January 31, 2013 marks the end of the second five-year remedial amendment cycle and deadline for filing of a determination letter request for a Cycle B plan. To preserve reliance on the plan’s continued tax qualification, plan sponsors of Cycle B plans (meaning sponsors with an EIN ending in digits 2 or 7, and sponsors of multiple employer plans) need to ensure that their plans have timely adopted all interim and discretionary amendments and that determination letter requests are submitted to the IRS no later than January 31, 2013.

Payroll Changes

 Employers who filed more than 250 Forms W2 for 2011 must begin reporting the aggregate cost of employer-sponsored health coverage provided to employees in 2012 on Form W-2 reporting required to be sent out by January 31, 2013.

 Beginning in 2013, the “Additional Medicare Tax” must be assessed on individuals earning more than $200,000 or married couples filing jointly earning more than $250,000. The Additional Medicare Tax rate will add 0.9% to the amount that some individuals will have to pay in 2013. The additional 0.9% will kick in only when the wages paid to an individual for the 2013 calendar year go above $200,000. It should be noted that this an additional tax that will apply only to individuals – there is no employer matching requirement. Be sure you consider all forms of compensation when determining when an employee’s wages exceed $200,000, including the imputed cost of group-term life insurance coverage in excess of $50,000, noncash fringe benefits and receipt by an employee of third-party sick pay. The IRS expects to release revised Forms 941 and 943 in the future.

Posted in aging workforce, employer benefit plans, employer policies, food processing, hospitality, manufacturing, Patient Protection and Affordable Care Act of 2010, wellness | Tagged , , | Leave a comment

Workers’ Christmas wish: Fire the boss!

Posted on December 5, 2012 by mavity2012

We know that to manage employees we must understand the demographic and cultural changes occurring, and how employees view the work world. The article linked below found that almost 30% of employees plan to change jobs in the coming year, and 2% expressly state that their Number 1 resolution in the coming year is to get their boss fired.

Posted in cultural changes, discipline and discharge, employer policies, recruiting | Tagged , , | Leave a comment

Employers Still Misunderstand or Underestimate Their Combustible Dust Risks

Posted on December 5, 2012 by mavity2012

Those of you who know me well are aware that I have worked with hundreds of plants in their combustible dust compliance efforts and have been involved with a number of explosion/deflagration fatalities, including the catastrophic explosion at the Imperial Sugar plant in Port Wentworth, Georgia.

  • It doesn’t matter that there is not yet a specific general duty standard

Although there is still no general industry combustible dust standard, OSHA has issued hundreds of citations against employers in numerous industries.  More importantly. potentially dangerous conditions do not lat dormant simply because of a lack of an applicable OSHA vertical standard.

  • Do you know if you are affected? Most don’t….

Regardless of your industry, if you have dust collection systems, accumulation of product-related dust, fit into certain NAICS or SIC codes, or have MSDS’s indicating a possibility of explosion or deflagration, you should at least consider whether you may need to address housekeeping, fugitive dust release, or technical compliance issues with a dust collection system.

Every setting seems a bit different, so do not assume that because a similar plant has no issues, neither do you.  Likewise, a history of no problems means little.  five elements are necessary for an event and your modification of a collection system or enclosure of a conveyor to protect food safety may provide a missing element , such as ignition source, oxygen, containment or the correct particle size and mix.

  • One size solution does not fit all and may cost you unnecessary millions.

NFPA standards are the recognized guidance but are not “the law.”  OSHA applies these standards in a fairly prescriptive way during inspections because no compliance officer or expert could conduct an adequate evaluation in the scant six months provided OSHA.  You need one of the experts who are experienced in conducting a Process Hazard analysis (PHA) and determining the most effective, practical and cost-effective way to protect your employees, product and facilities.  Likewise, the legal issues and the often long abatement periods really suggest the need for one of us nerds who handle many combustible dust cases. 

Compliance can involve simple improvements in housekeeping or time-consuming million dollar changes to each plant.  And of course, once you are aware of a potential hazard at one site, how do you address the other sites without appearing negligent or acting willfully?  The abatement and improvement may take more than a year.  It is not a fast process to find the right experts, test, conduct a PHA, select the best contractors, and then make changes which may necessitate plant shutdowns.

I have attached a link to an article by a very fine expert with whom I have worked.  The Article was selected by ASSE as the “best of the best:” http://www.conversiontechnology.com/brochures/SafelyMade_V03N01_CTI.pdf

Remember… there is no such thing as a minor combustible dust explosion and deflagration.

Posted in combustible dust, food processing, manufacturing, OSHA | Tagged , , | 1 Comment