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Friday, May 28, 2010

Regulations Squelching Employer Free Speech












Alabama@Work
By Tommy Eden

Obama Plan #1 Persuasion and Advice: The Department of Labor (DOL) held on May 24, 2010 an “open forum” to discuss proposed rule changes to consultant, attorney and now employer reporting of “persuasion and advice” activities regarding unions. The changes will require Law Firms and Consulting Firms to report many so-called “advice” activities as “persuasion” under Section 203(c) of the Labor Management Reporting Disclosure Act of 1959 (LMRDA).

In addition the DOL wants to change Section 203(e) of the LMRDA to require employers to report when supervisors and managers speak about union issues to employees. It is important to note that failure to report these activities is a crime punishable by both fine and imprisonment.

The U.S. Chamber of Commerce and the National Association of Manufacturers spoke in opposition. Speaking in favor of the rule changes were several unions including the AFL-CIO, the Mine Workers of America, the Bricklayers Union and Operating Engineers. Expect the new rules sometime late fall or early 2011 (after the mid-term elections).

Obama Plan #2 Executive Order 13496: Notification of Employee Rights Under Federal Labor Laws. The U.S. Department of Labor published a final rule in the May 20 edition of the Federal Register requiring federal contractors and subcontractors to provide notice to their employees of their rights under the National Labor Relations Act. The Rule is effective June 19, 2010.

Federal contractors and subcontractors will be required to post the prescribed employee rights notice at their workplaces. The notice lists employees' rights under the NLRA to form, join and assist a union and to bargain collectively with their employer; provides examples of unlawful employer and union conduct that interferes with those rights; and indicates how employees can contact the National Labor Relations Board, the federal agency that enforces those rights, with questions or complaints. The rule implements provisions of Executive Order 13496, which was signed by President Barack Obama on Jan. 30, 2009. The requirement for posting this employee notice must be included in every covered federal contract and subcontract.
Contractors that violate the requirements of the regulations may be subject to sanctions, including suspension or cancellation of the contract.
For more information, visit http://www.dol.gov/olms/regs/compliance/EO13496.htm
were you may view the 152-page Final Rule and a variety of compliance resources and download the mandated11x17 poster.

Obama Plan #3 National Mediation Board: These actions by the DOL are following the administration’s regulatory playbook who had the National Mediation Board change a 75year old voting rule for employers in DOT regulated FAA and FMCSA Companies where only a majority of those employees voting, not total members of the bargaining unit, are needed to vote in a union.

Common Sense Counsel: if you are a federal contractor of any description (bank, credit union, sell stuff to the federal government, receive federal funding, etc) falling under this Obama Administration payback initiative to Big Labor, you are highly encouraged to review the regulations and be prepared to post the notice on June 19, 2010. More to come as the rest of the Obama playbook is implemented through regulation rather than legislation.


Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com

Thursday, May 20, 2010

US Labor Department Publishes Rule Requiring Posting of Employee Organizing Rights (EO 13496)









Alabama@Work
By Tommy Eden

The U.S. Department of Labor will publish a final rule in the May 20th edition of the Federal Register requiring federal contractors and subcontractors to provide notice to their employees of their rights under the National Labor Relations Act.

Federal contractors and subcontractors will be required to post the prescribed employee rights notice at their workplaces. The notice lists employees' rights under the NLRA to form, join and assist a union and to bargain collectively with their employer; provides examples of unlawful employer and union conduct that interferes with those rights; and indicates how employees can contact the National Labor Relations Board, the federal agency that enforces those rights, with questions or complaints. The rule implements provisions of Executive Order13496, which was signed by President Barack Obama on Jan. 30, 2009. The requirement for posting this employee notice must be included in every covered federal contract and subcontract.

Under the rule, employees will have the right to file complaints with the Department of Labor about contractors that do not comply with the prescribed requirements. Contractors that violate the requirements of the regulations may be subject to sanctions, including suspension or cancellation of the contract. Two Labor Department agencies, OLMS and the Office of Federal Contract Compliance Programs, are responsible for administering and enforcing the rule's requirements. For more information, visit the OLMS website at http://www.dol.gov/olms/regs/compliance/EO13496.htm where you may view the 152-page Final Rule and a variety of compliance resources.

While the Rule is effective June 19, 2010, an otherwise covered entity is not bound to post the mandated notice (http://www.dol.gov/olms/regs/compliance/EmployeeRightsPoster2page_Final.pdf) until the entity signs a new Federal contract, subcontract or modification mandating compliance with the Executive Order. The size of the poster must be 11x17 inches or larger or two 11x8.5-inch landscape pages that must be taped or pasted together to form the 11x17 inch poster.

Significant Provisions of Final Rule EO 13496

Exceptions to Posting Requirements - The posting requirements do not apply to prime contracts under the Simplified Acquisition Threshold, which is currently set at $100,000, and do not apply to subcontracts below $10,000.

Obtaining the Required Posters - Contractors and subcontractors can acquire the poster from: (1) the Federal contracting departments and agencies; (2) the Department of Labor’s Office of Labor-Management Standards (OLMS) at (202) 693-0123 or www.olms.dol.gov; or (3) field offices of the Department of Labor’s OLMS or Office of Federal Contract Compliance Programs (OFCCP).

Physical and Electronic Posting -Contractors and subcontractors must post the employee notice conspicuously in and around their plants and offices so that it is prominent and readily seen by employees. In particular, contractors and subcontractors must post the notice where other notices to employees about their jobs are posted. Additionally, contractors and subcontractors who post notices to employees electronically must also post the required notice electronically via a link to the OLMS website. When posting electronically, the link to the notice must be placed where the contractor customarily places other electronic notices to employees about their jobs. The link can be no less prominent than other employee notices. Electronic posting cannot be used as a substitute for physical posting.

Acquiring Translated Posters -Where a significant portion of a contractor's or subcontractor’s workforce is not proficient in English, they must provide the employee notice in languages spoken by employees. OLMS will provide translations of the employee notice that can be used to comply with the physical and electronic posting requirements.

Investigations and Sanctions for Non-Compliance -OFCCP may conduct evaluations to determine compliance. Contractors who violate the regulations may be subject to sanctions for non-compliance, including suspension or cancellation of an existing contract; debarment from future Federal contracts and subcontracts; and inclusion on a list published and distributed by the Director of OLMS to all executive agencies listing the names of contractors and subcontractors declared ineligible for future contracts as a result of non-compliance with these requirements. A contractor will have an opportunity for a hearing and an appeal before the imposition of any sanctions. The National Labor Relations Board has exclusive jurisdiction to adjudicate disputes arising from alleged violations of the mandated notice.

Common Sense Counsel: if you are a federal contractor of any description (bank, credit union, sell to the federal government, receive federal funding, etc) falling under this Obama Administration payback initiative to Big Labor, you are highly encouraged to review the regulations and be prepared to post the notice on June 19, 2010. We will be providing additional recommended guidance in the next 2 weeks.


Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com

Wednesday, May 19, 2010

Auto supplier Sewon America faces $135,900 in fines for OSHA safety violations



Columbus Ledger-Enquirer

Auto supplier Sewon America faces $135,900 in fines for OSHA safety violations

LaGrange plant makes parts for Kia auto assembly plant in West Point

- tadams@ledger- enquirer.com
tool name
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Sewon America Inc., a major supplier to the Kia Motors auto assembly plant in West Point, Ga., faces $135,900 in penalties over a series of safety violations, the U.S. Department of Labor’s Occupational Safety and Health Administration said Tuesday.
OSHA said it conducted an inspection of the Sewon facility in LaGrange, Ga., in March after receiving a complaint. The agency cited the company for failing to provide employees with proper hand protection and not protecting them from welding flash burns. The proposed penalty for that is $99,000.
A dozen more safety violations cited by the agency include “failing to train or evaluate workers operating industrial trucks; failing to guard against confined sparks during welding operations; failing to provide lockout/tagout procedures for energy sources; failing to provide proper machine guarding on various machines; and various electrical deficiencies.” The proposed penalties for those total $36,900.
“There is no reason to leave employees unprotected,” Andre Richards, directors of OSHA’s Atlanta-West Office in Smyrna, Ga., said in a statement. “Management is aware of the deficiencies in their safety and health program and needs to take action.”
Sewon America officials did not return phone calls Tuesday for comment on OSHA’s citations and proposed penalties. The company has 15 business days after receiving the official paperwork from the agency to ask for a meeting with Richards.
The Sewon plant, located at 1000 Sewon Blvd. in LaGrange, manufactures stamped chassis and body components, as well as decorative trim pieces. When initially announcing its plans, the company said it anticipated hiring up to 700 workers for a 420,000-square-foot factory on 65 acres at a price tag of about $170 million.
A job fair in early 2009 drew more than 3,000 people looking to fill about 300 of those positions.

Common Sense Counsel: It is advised that you have a comprehensive safety audit conducted ASAP. The next time the Government “come to help you” the cost of being in the wrong just went up.

Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com

Alabama KFC owner to pay $1M for sexual harassment


Alabama KFC owner to pay $1M for sexual harassment
May 19, 2010
Montgomery Advertiser
MOBILE -- The owner of a Kentucky Fried Chicken restaurant in south Alabama will pay 19 female employees more than $1 million to settle sexual harassment claims, a federal agency in Birmingham, Alabama announced Tuesday.

A suit filed on behalf of the women in March 2009 by the U.S. Equal Employment Opportunity Commission leveled accusations against Jack Marshall Foods Inc., a family run company based in Tuscaloosa, which operates the KFC restaurant in Monroeville.

The suit accused the business of tolerating male employees openly describing sexual desires and interests with female employees and engaging in unwelcome sexual touching and groping. The suit said at least three of the women at the Monroeville restaurant were teenagers at the time.

In a news release Jack Marshall Foods said Tuesday that it fired the male cooks in question before the suit was filed and that not all of the claims were found to be true. The company said it settled the case rather than pursue costly litigation "so that we could protect the jobs of our other 400 employees."

"The allegations in this case were shocking," EEOC District Director Delner Franklin-Thomas said. "Sexual harassment at any workplace is unacceptable," EEOC Chair Jacqueline A. Berrien said. "But when some of the victims are teenagers, as was the case here, the situation is especially egregious."
Common Sense Counsel Sexual harassment is always unconscionable. For Alabama employers there is no substitute for a well drafted written policy against harassment, distribution of the policy with a signed employee acknowledgment, training on the policy and a procedure to investigate and resolve complaints. The next issue of grave concern is the hiring of employee when you have teenage employees. Great care should be taken with the appropriate background checks.

Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com

Monday, May 17, 2010

Employers Still Have No Duty to Accommodate Medical Marijuana











Alabama@Work
By: Tommy Eden, Attorney

In Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries, the Oregon Supreme Court reversed a state administrative ruling that an employer violated Oregon disability laws when it terminated an employee who disclosed that he was using marijuana for medicinal reasons. With this decision the Oregon's Supreme Court has ruled that Oregon law does not require employers to accommodate the use of medical marijuana that is otherwise allowed under state law. This case brings Oregon in line with both California and Washington on how employers should respond to requests for disability accommodations premised on medicinal-marijuana use. No other State thus far has taken a contrary position.

Background: Emerald Steel hired a drill press operator (safety sensitive job) who was using medical marijuana as allowed under Oregon’s Medical Marijuana Law. The employee disclosed his medical marijuana use to Emerald Steel and he was terminated. He filed a charge of discrimination with the Oregon Bureau of Labor and Industries alleging that Emerald Steel discriminated against him because of a disability, failed to make reasonable accommodations, and failed to engage in the interactive process. In 2009, while the Charge was pending, Oregon disability law was amended to exclude consideration of mitigating measures in evaluating whether an employee is disable, in line with the ADAA of 2009.

Decision: The Oregon Supreme Court recited in its decision that marijuana use is categorically prohibited under federal law and observed that federal law directly conflicts with the Oregon Medical Marijuana Act because "Congress imposed a blanket federal prohibition on the use of marijuana without regard to state permission to use marijuana for medical purposes… While the state may lawfully "exempt" medical-marijuana users from state criminal liability, it may not "authorize" conduct that directly conflicts with federal law.” The Court held that Oregon disability law does not protect an applicant or employee who engages in the illegal use of drugs and that the Oregon Medical Marijuana Act must yield to federal law on what is illegal drug use. Finding that the Emerald Steel employee was not protected by the Oregon disability statute and Emerald Steel had no obligation to engage in an interactive process or to accommodate the employee's drug use, the Court held.

Other State Court Decisions: There are now 15 states with Medical Marijuana laws and most likely more to come. The Emerald Steel decision is in line with similar decisions from California and Washington. In Ross v. RagingWire Telecommunications (2008), the California Supreme Court held that California's Compassionate Use Act does not require employers to accommodate the use of medical marijuana Likewise, in Roe v. TeleTech Customer Care Mgmt. (2009), the Washington court of appeals found no implied cause of action under the Washington State Medical Use of Marijuana Act against an employer who refused to hire a prospective employee who failed a pre-employment drug test allegedly due to her medical use of marijuana.

Common Sense Counsel: Medical Marijuana Laws are a complex area of the law where multiple state and federal laws impact and often collide. The best risk reduction strategy is to have a well drafted state law compliant drug free workplace policy that addresses the issue in those states which have Medical Marijuana Laws. Otherwise your business could go up in smoke.


Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com