At the same time, recent NLRB decisions expand employee rights and may call into question certain HR policies. In light of the NLRB’s heightened scrutiny, it is important for employers – whether fully unionized, partially unionized or union-free – to determine now whether any of their HR policies inadvertently could violate the NLRA. If they do, the new Notice may lead to circumstances that expose the fact.
Here are a few examples of policies that could result in unfair labor practice charges under recent Board decisions:
Many companies have broad, generic policies prohibiting harassment of co-workers. The NLRB has ruled that, if not carefully worded, these policies may be “reasonably interpreted” as improperly prohibiting employees from partaking in union organizing, conduct protected by the NLRA.
Some employers have policies prohibiting employees from speaking to the media without prior authorization by management. The NLRB has held, however, that some of these policies are unlawful. They “chill” employees’ statutory right to publicize their grievances, according to the Board.
Many companies have begun to implement social media policies prohibiting employees from disparaging the employer on social media sites. The Board has ruled that many of these policies violate the NLRA.
Confidentiality policies of numerous businesses prohibit employees from discussing their wages with co-workers or outsiders. Employers also may need to modify these policies to avoid running afoul of the NLRA. Indeed, the new NLRB Notice expressly advises employees that they have the right to discuss their wages with co-workers and unions. An organization’s failure to rescind or revise such a policy could be viewed as an unfair labor practice and be considered willful non-compliance with the Notice.
We also recommend that employers consider conducting management training now so that managers understand the law and the significance of the posting and do not unintentionally make unlawful statements when the Notice is posted. Since the Notice tells employees they are protected by federal law in raising work-related complaints, and engaging in strikes, picketing, and other protected concerted activity (which, based on recent NLRB decisions, can include public criticism of the employer or individual managers, among other things), management training also can help a company ensure that managers respond in a legal manner to such activities.
* * *
We encourage clients to consider implementing the following steps before the Notice is required to be posted on November 14th:
(a) Review HR policies immediately for NLRA compliance;
(b) Determine an appropriate compliance plan, including identifying where and how the notices should be posted and whether the law requires internet or intranet posting or alternative language posting;
(c) Train supervisors on how to lawfully and appropriately respond to employee questions about the Notice and provide them with legal guidance on lawful communications;
(d) Develop a comprehensive preventive plan, which might include development or dissemination of a lawful corporate employee relations policy; and
(e) Develop a plan for responding in a lawful fashion to potential union or other protected concerted activity.
We are prepared to make recommendations to assist you in lawfully implementing these steps, if you choose to adopt such a program.

According to OSHA, during the phase-in period, compliance officers “will not issue citations, but will instead issue a hazard alert letter informing the employer of the feasible methods they can use to comply with OSHA’s fall protection standards or implement a written fall protection plan.  If the employer’s practices do not meet the requirements set in the old directive, OSHA will issue appropriate citations.”  Employers engaged in residential construction are encouraged to review the directive to ensure that their worksites comply with the standard to avoid costly OSHA citations.

Our attorneys are available to assist should you have any questions about the Directive or any other OSHA issue.

To view the directive, click here.  OSHA also provides guidance on residential fall protection on its website: http://www.osha.gov/doc/residential_fall_protection.html

Two recent federal court decisions have rejected challenges which sought to enjoin OSHA from implementing the Directive, so beginning on June 16, 2011, employers engaged in residential construction jobsites must ensure that they are complying with the fall protection standard.

The standard provides that “[w]hen the employer can demonstrate that it is infeasible or creates a greater hazard to use these systems, the employer shall develop and implement a fall protection plan which meets the requirements of paragraph (k) of 1926.502.” The employer bears the burden to show that a fall protection plan is appropriate instead of using a fall protection system. Any fall protection plan an employer relies upon to satisfy the standard must be in writing and site-specific. Failure to have such a plan will result in a violation being issued.

Our attorneys are available to assist should you have any questions about the Directive or any other OSHA issue.

To view the directive, click here. OSHA also provides guidance on residential fall protection on its website.

DERA required anyone who contracts directly or indirectly with state agencies or public authorities, including contractors, subcontractors, any contractors hired by a subcontractor, and suppliers, to utilize ultra low sulfur diesel fuel (ULSD) for covered heavy duty vehicles (HDVs) and use Best Available Retrofit Technology (BART) for covered HDVs according to a compliance schedule.  The end result would mean that anyone performing work or supplying materials in connection with state agency and public authority projects would need to install expensive diesel particulate fuel filtering devices.

The Third Department “conclude[d] that the Legislature did not intend to impose DERA’s requirements on vehicles other than those used by prime contractors under direct contract with state agencies and public authorities.”  However, the Court refused to allow additional time for compliance with DERA, so a contractor subject to DERA requirements must still meet the BART compliance deadline of December 31, 2012.

The full text of the Third Department’s decision is available here.

The Wage Theft Prevent Act created new obligations for employers to notify their employees of wage rates and other information, including:

• Employee’s rate(s) of pay;
• Overtime rate of pay, if employee is subject to overtime regulations;
• Basis for wages (hourly, shift, weekly, piece rate, commission, etc.);
• Any allowances an employer claims as part of the minimum wage;
• Regular payday;
• Employer’s name and any names under which the employer does business (e.g., DBA);
• Employer’s physical address, and mailing address, if different; and
• Employer’s telephone number

The new notification requirements are effective April 9, 2011 and require that the information be provided to employees at the time of hire and on or before February 1st annually.  When the information is provided to an employee, the employer must obtain a signed and dated written acknowledgment from the employee in English and the employee’s primary language (if other than English).  The employer must maintain the acknowledgments for six years.

The New York State Department of Labor has posted notice and acknowledgment templates for several types of pay arrangements on its website.

DERA requires that anyone who contracts directly or indirectly with state agencies or public authorities, including contractors, subcontractors, any contractors hired by a subcontractor, and suppliers, to utilize ultra low sulfur diesel fuel (ULSD) for covered heavy duty vehicles (HDVs) and use Best Available Retrofit Technology (BART) for covered HDVs according to a compliance schedule set forth in New York State Department of Environmental Conservation regulations implementing DERA. 

ULSD has been readily available for on-road use since October 2006, so compliance with that portion of DERA should not be an issue.  However, compliance with the BART may involve installing expensive fuel filtering devices in order meet the requirements for certain HDVs equipped with model year 2006 or older diesel engines.  In light of the 2011-2012 New York State budget, contractors, subcontractors, and suppliers will now have until December 31, 2012 to retrofit their HDVs to comply with DERA.

Mr. Breakell will be giving a presentation entitled “Effective Tactics for Getting Paid” and discuss collection strategies for  suppliers to get paid for materials delivered to projects.

Mr. Wettig will be giving a presentation entitled “Drug and Alcohol Testing – What Is Reasonable Suspicion?” and discuss the legal responsibilities and implications of administering a company drug and alcohol testing program.

For more details and additional information about NYSCMA’s 2011 Spring Member Conference, contact the New York State Concrete Masonry Association at 315-254-0518 or visit nyscma.org.

The instruction contains a number of updates, including clarification of what PPE an employer must provide at no cost, when an employer must pay for PPE and for replacement PPE, and when an employer is not required to pay for PPE.  It also sets forth OSHA’s enforcement policies regarding PPE.

In general, an employer must provide at no cost to its employees PPE that is used to comply with OSHA standards, including the safety and health regulations set forth in 29 CFR 1926 relating to construction.  The instruction contains examples of PPE items that an employer is required to provide at no cost to its employees when used to comply with OSHA standards, including non-prescription eye protection, hearing protection, respirators, personal fall protection, and ladder safety devices.  Examples of PPE that are exempted from the employer payment requirement are also set forth in the instruction.  The instruction also sets forth a PPE Standards Reference Table which lists a number of OSHA standards that require PPE, including construction standards.

Personal protective equipment violations can be costly to an employer.  A thorough review of the relevant standards and the Enforcement Guidance for Personal Protective Equipment in General Industry directive can keep your employees safe and help prevent OSHA violations and penalties.

To view the directive, click here.

Some of the topics planned for the seminar include:

• Advertising of bids/letting of contracts
• Performancpayment bond requirements
• OSHA 10-Hour law
• Payment and retainage provisions
• NYS Prompt Payment law
• Trust fund provisions

For additional details and to register for the seminar, contact Brendan Manning, AGC NYS Education and Environmental Director at 518-456-1134.

To view a copy of the seminar flyer, click here.