HPSS Construction Law News
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OSHA Announces New Enforcement Standards
The Occupational Safety and Health Administration has announced new enforcement standards and guidance, which became effective March 27, 2023. The new standards are intended to increase penalties in the hopes of ultimately deterring employers from committing serious violations of OSHA rules.
The new guidance addresses two separate OSHA enforcement issues. First, regional administrators and area office directors will have broader discretion to issue citations for certain violations on an “instance-by-instance” basis. Since 1990, instance-by-instance citations have been limited to willful violations. Under the new enforcement standard, instance-by-instance citations may be applied to certain “high-gravity” violations, specific to falls, trenching, machine guarding, respiratory protection, permit required confined space, lookout tagout, and other-than-serious violations specific to record-keeping.
The construction industry is specifically identified as a target for the new approach to instance-by-instance citations. These citations will now normally be based on one of more of the following factors:
- The employer has received a willful, repeat, or failure to abate violation within the past 5 years where that classification is current
- The employer has failed to report a fatality, hospitalization, amputation, or loss of an eye
- The proposed violations are related to a fatality/catastrophe
- The proposed record-keeping citations are related to injury or illness that occurred as a result of a serious hazard
Separate penalties will be assessed for each violation issued on an instance-by-instance basis.
The second piece of enforcement guidance consists of a reminder to regional administrators and area directors not to group violations, but rather to cite them separately “where there is evidence that worksite conditions giving rise to the violations are separate and distinct, or where different conduct gave rise to the violations.” Specifically, the guidance provides that “in cases where grouping does not elevate the gravity or classification and resulting penalty, then violations should not be grouped if the evidence allows for separate violations.”
The intention and the effect of the new enforcement standards is and will be increased numbers of citations and a corresponding increase in the number and severity of penalties issued for such violations. Because the construction industry is specifically targeted, contractors should make renewed efforts to fortify their safety and OSHA compliance protocols.
If you have any questions about the new OSHA enforcement standards, please contact Scott Calhoun. You can e-mail Scott by clicking here. If you have other questions about OSHA enforcement or have been issued a citation, please contact Philip Siegel. You can e-mail Philip by clicking here.
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Be On the Lookout! USCIS Redesigns Permanent Resident Cards and Employment Authorization Documents
On February 3, U.S. Citizenship and Immigration Services (USCIS) announced it had redesigned both Form I-551, Permanent Resident Card, which is commonly known as a Green Card, and Form I-766, Employment Authorization Document (EAD). The redesigned Green Card and EAD were first issued on January 30, 2023, although USCIS notes that some Green Cards and EADs issued after January 30, 2023, may still display the previous format. This is of particular importance to employers within the construction industry as it concerns completion of Form I-9 for new hires and re-hires.
Employers in the construction industry are encouraged to familiarize themselves with the redesigned Green Card and EAD to avoid the mistake of turning down an applicant who is otherwise authorized to work on the mistaken belief that the Green Card or EAD does not appear genuine because it differs from what has been its design. You can view the redesigned Green Card through this link. Images of both the older and redesigned versions of both documents can be viewed through this link.
In the meantime, construction employers are reminded that prior and current Green Cards and EADs remain valid, as long as they have not expired (or been automatically extended).
If you have any questions concerning completion of Form I-9 or whether documents presented by applicants or re-hires are legitimate for Form I-9 purposes, please contact Philip Siegel. You can e-mail Philip by clicking here, or you can reach him directly at (404) 469-9197. Philip is also available to conduct an audit of your Form I-9s.
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Employment Law Changes in FY23 Omnibus Appropriations Bill |
The Fiscal Year (FY) 2023 Omnibus Appropriations Bill, which was signed into law on December 29, 2022 and set $1.7 trillion in appropriations and allocations of federal funds through September 30, 2023, contained two new employment laws that will impact most employers. These two new laws expand accommodation requirements for pregnant and nursing employees.
The Pregnant Workers Fairness Act
The Pregnant Workers Fairness Act (“PWFA”) requires employers with 15 or more employees to make “reasonable” accommodations for employees affected by pregnancy or childbirth unless accommodations impose an “undue hardship.” Under the PWFA, employees who are pregnant, have pregnancy-related conditions, or have recently given birth are eligible for workplace accommodations to allow them to perform essential job functions.
Up to until now, federal law had only gone so far as expressly prohibiting discrimination against employees because of their pregnancy or pregnancy related conditions. Now, employers must make reasonable accommodations for pregnant employees. Reasonable accommodations may include assigning light duty work, permitting more bathroom breaks, and potentially allowing the employee to work from home. However, under the PWFA, like the Americans with Disabilities Act, accommodations are typically not considered reasonable if they eliminate an essential function of the job or require creating a new job.
The PWFA becomes effective on June 27.
The Providing Urgent Maternal Protections (PUMP) for Nursing Mothers Act
The PUMP for Nursing Mothers Act requires employers to allow reasonable break time for employees to express breast milk for one year following the birth of a child. In addition, the PUMP for Nursing Mothers Act requires employers to provide a place, other than a bathroom, that is shielded from view and free from intrusion to employees to express breast milk. However, employers with less than 50 employees are exempt where compliance would present an undue hardship, such as causing the employer significant difficulty or expense to comply with PUMP for Nursing Mothers Act.
PUMP for Nursing Mothers Act is already in effect.
Employers should make sure their supervisors, managers, and HR know about these new laws so that when accommodation requests are made, they are handled correctly.
If you have any questions regarding these two new employment laws, please do not hesitate to call or email either Philip Siegel or Ben Lowenthal. You can e-mail Philip by clicking here, or he can be reached directly at (404) 469-9197. You can e-mail Ben by clicking here, and he can be reached directly at (404) 469-9177.
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Speak Out Act is now Law
On December 7, 2022, President Biden signed into law what is commonly referred to as the Speak Out Act. The Act is intended to empower survivors of sexual assault and sexual harasssment to come forward with their claims without fear of violating any pre-dispute non-disclosure contract clauses pertaining to those claims. The Act does this by making unenforceable such clauses that were agreed to prior to the dispute arising.
Agreements that are reached after a claim arises and include non-disclosure provisions will remain enforceable under the law. Consequently, a settlement agreement resolving a sexual harassment claim, for example, may include a non-disclosure provision without running afoul of the Act.
Employers in the construction industry that bind employees to confidentiality agreements or non-disclosure agreements which are intended to protect the company's confidential information and trade secrets should revisit those agreements in light of the Speak Out Act. If a review of those agreements leaves the reader unsure whether the language extends to claims of sexual harassment or sexual assault, revisions to those agreements are likely appropriate.
If you have any questions regarding the Speak Out Act, please do not hesitate to reach out to Philip Siegel or Ben Lowenthal. You can e-mail Philip and Ben by clicking here.
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National Labor Relations Board Decision and General Counsel Guidance on Severance Agreements
On February 21, 2023, in the case of McLaren Macomb, the National Labor Relations Board (“NLRB”) ruled that the broad confidentiality and non-disparagement provisions in the severance agreements at issue violated the employees’ right to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection. In the decision, the NLRB found that confidentiality and non-disparagement requirements in the severance agreement were unlawful because employees could interpret the provisions as prohibiting them from discussing their workplace experiences, which the NLRB viewed as central to the exercise of employee rights under the National Labor Relations Act (the “Act”).
Thereafter, on March 22, 2023, the NLRB’s general counsel, Jennifer Abruzzo, issued a memorandum that provided guidance on questions that employers had presented since the issuance of the McLaren Macomb decision. While the memorandum states that entering into severance agreements with employees is not prohibited, the decision and the guidance from the NLRB’s general counsel will require employers to re-examine their severance agreements as previous forms may now be considered unlawful and, in the NLRB’s general counsel’s opinion, the NLRB may apply the McLaren Macomb decision retroactively. Further, employers may need to re-examine confidentiality and non-disparagement provisions in employee handbooks, policies, and employment agreements to determine whether the McLaren Macomb decision makes such provisions unlawful or if such provisions are at risk of being deemed unlawful if the NLRB rules in future cases in the manner that is consistent with the NLRB’s general counsel’s guidance memorandum. NLRB General Counsel memorandum GC-2023-05 can be found here.
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Firm News
We are very proud to announce that Stephen Phillips, Martin Salzman, and Philip Siegel have been named Super Lawyers and Benjamin Lowenthal was named a Rising Star in the 2023 edition of Georgia Super Lawyers. Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates, and peer reviews by practice area. The result is a credible, comprehensive, and diverse listing of exceptional attorneys.
We are honored and humbled to announce that Hendrick, Phillips, Salzman & Siegel has been given recognition by the New World Report as a recipient of a Legal Elite Award for 2023. Our firm has been recognized as the Leading Construction Specialist Law Practice 2023 in the state of Georgia.
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