On March 12, 2013, ż submitted comments to the U.S. Department of Labor’s Wage and Hour Division (WHD) concerning its proposal to collect information from workers about their employment experiences and knowledge of laws regarding the misclassification of independent contractors as employees. The proposed survey would involve prescreening nearly 18,000 households leading to over 10,000 interviews of workers from various industries over a two-year period. Since construction has often been mentioned by the WHD as an industry of focus with regard to worker misclassification enforcement, it is expected that construction workers will be targeted for survey participation.
On July 30, 2012, the National Labor Relations Board (NLRB) issued its decision in Banner Health System d/b/a Banner Estrella Medical Center, 358 N.L.R.B. No. 93 (2012), holding that an employer may not maintain a blanket rule prohibiting employees from discussing ongoing investigations of employee misconduct. In Banner Health, the Board rejected the employer's argument that the confidentiality instruction was necessary to protect the integrity of its investigations and found the employer's "generalized concern" insufficient to outweigh employees' rights under Section 7 of the National Labor Relations Act. Instead, the Board concluded, in every investigation, an employer must identify a specific need to protect witnesses, avoid spoliation of evidence or fabrication of testimony, or prevent a cover-up, before instructing employees to maintain confidentiality. Consequently, in the Board’s view, the blanket confidentiality instruction at issue in Banner Health violated the Act.
In another victory for the ż-supported Coalition for a Democratic Workplace (CDW), the U.S. Court of Appeals for the District of Columbia Circuit (DC Circuit) has invalidated a regulation by the National Labor Relations Board (NLRB) that required most private-sector employers to post designated notices informing employees of certain rights under the National Labor Relations Act (NLRA), including the right to organize. As previously reported, the Board published the controversial final rule in August 2011 but put implementation on hold after the DC Circuit issued a temporary injunction on the rule. The court has now permanently enjoined the rule. The CDW was a co-plaintiff in the case, the National Association of Manufacturers v. NLRB (D.C. Cir., 5/7/13).
The ż Labor and Employment Law Council held its 29th Annual Construction Labor Law Symposium on April 18 and 19 in Washington, D.C. Attorneys and chapter labor relations managers from across the country attended to learn about the latest developments in construction labor and employment law.
Beginning on May 7, 2013, the U.S. Citizenship and Immigration Services (USCIS) division of the Department of Homeland Security will require all employers to use the newly released Form I-9, the Employment Eligibility Verification Form. The new Form I-9 is longer and more complex than the previous version and comes with new rules affecting which documents may be used to verify the employment eligibility of workers. There are also new instructions and additional data fields for employees and employers. As a result, ż will host a compliance assistance webinar on the new Form I-9. The webinar will take place on Thursday, May 23 from 2:00-3:30 p.m. EDT. The cost to participate is just $49 for ż members and $79 for non-members.
This week, the Senate bipartisan “gang of eight” unveiled their long-awaited immigration bill. The 884 page bill covers border security, establishing an opportunity for earned legal status of undocumented workers, visa programs for highly skilled workers and temporary visas for lower skilled workers, and an employment verification system. ż continues to review the entire bill and will be commenting on issues of high priority to the construction industry. One troubling provision is that the construction industry would be the only industry under a separate, smaller annual cap of eligible visas under the proposed temporary worker visas program for lesser-skilled workers.
The chief executive officer of the Associated General Contractors of America, Stephen E. Sandherr, issued the following statement in response to proposed immigration reform legislation released today by the “Gang of Eight” Senators: “The Senators’ proposal for immigration reform provides a long-needed opportunity to fix a significantly broken system. That is why we will fully review the details of a very complex bill. We are deeply troubled that the proposal appears to arbitrarily single out the construction industry for a unique cap while providing a reasonable mechanism for the immigration system to adapt to evolving market conditions for every other segment of the domestic economy."
In light of recent press reports – some conflicting and premature – on a bipartisan “deal” on immigration reform from the Senate “Gang of 8” ż joined with other construction industry groups to comment on the industry’s view of the negotiations so far. The eight senators (Schumer (D-N.Y.), McCain (R-Ariz.), Durbin (D-Ill.), Graham (R-S.C.), Menendez (D-N.J.), Rubio (R-Fla.), Bennet (D-Colo.), and Flake (R-Ariz.)) continue to work on many elements of immigration reform, with the bulk of the discussions and the source of much consternation centering around a future temporary worker visa program. Other important parts of immigration reform that ż continues to lobby on include the Employment Eligibility Verification Provisions; the Legalization Provisions; and the Conversion to Permanent Residence Provisions from the Temporary Worker Program. These important areas still need to be agreed upon by the gang of eight and the committee. Only then can the program be put to a vote on the senate floor. Thus, the reports of a “done deal” are extremely premature.
In light of recent press reports - some conflicting and premature - on a bipartisan “deal” on immigration reform we wanted to provide you with an update on the status of those discussions along with the impact for the construction industry. The group of eight Senators are: Schumer (D-N.Y.), McCain (R-Ariz.), Durbin (D-Ill.), Graham (R-S.C.), Menendez (D-N.J.), Rubio (R-Fla.), Bennet (D-Colo.), and Flake (R-Ariz.). While they are working on many elements of immigration reform, the bulk of the discussions and the source of much consternation has centered on a future temporary worker visa program. Other important parts of immigration reform that ż continues to lobby on include the Employment Eligibility Verification Provisions; the Legalization Provisions; and the Conversion to Permanent Residence Provisions from the Temporary Worker Program. These important areas still need to be agreed upon by the gang of eight and the committee. Only then can the program be put to a vote on the senate floor. Thus, the reports of a “done deal” are extremely premature.
Implementation of the Affordable Care Act (ACA) has been challenging for many employers. To offer assistance to construction employers, ż has dedicated a page on its website to providing compliance resources on the ACA. The members-only page includes links to white papers, a webinar and government resources. ż will update the page routinely as new and relevant information becomes available.