ABC REGULATORY ALERT – SUMMER 2010 ABC’s quarterly Regulatory Alert provides you with what you need to know about the ever-changing landscape of federally mandated rules, regulations and enforcement actions from the U.S. Department of Labor and others. Below, you will find brief summaries of current issues, as well as links to important information and guidance. If you have questions, please contact Sean Thurman, ABC’s manager of regulatory affairs, at thurman@abc.org. In This Alert: EFFECTIVE NOW: The Occupational Safety and Health Administration (OSHA) has increased employer fines. Under the agency’s revised penalty calculation system, the fine for a serious violation has increased from “approximately $1,000 to an average of $3,000 to $4,000.” In addition, OSHA plans to review the past five years of a company’s enforcement history when assessing fines, an expansion of the agency’s previous three-year review policy. Although the changes outlined by the penalty memo have not been formally incorporated into OSHA’s Field Operations Manual, ABC has learned that regional enforcement officers are beginning to utilize the revised penalty system. For more information, including tables outlining the new penalty levels, view OSHA’s penalty increase memo.
The Department of Labor’s Wage and Hour Division (WHD) announced a new employee outreach program geared toward specific industries, including construction. Titled “We Can Help,” the program encourages employee recordkeeping, and provides information to assist workers (and third parties on behalf of workers) to report suspected violations under the Fair Labor Standards Act. For more information, visit DOL’s We Can Help webpage. The Department of Labor (DOL) has launched a publicly accessible, online database, which provides previously unavailable enforcement data from multiple agencies, including OSHA, WHD, the Employee Benefits Security Administration and the Office of Federal Contract Compliance Programs. Eventually, DOL plans to make the database even easier to navigate, allowing the general public to search for enforcement data by employer. For more information, visit DOL’s Enforcement Data webpage.
The Environmental Protection Agency (EPA) now requires contractors performing renovation, repair or painting projects that disturb more than six feet of lead-based paint in pre-1978 homes and child-occupied facilities to be trained and certified in specific work practices designed to prevent exposure to lead-based paint. The rule is a part of the EPA’s Lead-Safe Renovation, Repair and Painting (RRP) program. Under the RRP program, both firms and certain employees must be trained and certified in lead-safe work practices prior to performing any task that meets the rule’s trigger requirements. In order to become certified, renovation contractors must complete an EPA-accredited training course, then submit an application and fee to EPA. Note that the following states have been authorized to administer their own RRP programs: Iowa, Kansas, Mississippi, North Carolina, Rhode Island, Oregon, Utah and Wisconsin.
EPA has granted an enforcement safe harbor to any contractor that submitted its certification application prior to the April 22 effective date. However, the agency has not announced plans to expand the safe harbor to incorporate other circumstances. Fines for noncompliance can reach up to $37,500 per day. For more information, consult EPA’s Lead RRP fact sheet.
The Federal Acquisition Regulatory Councils have implemented President Obama’s Executive Order 13502, encouraging project labor agreements (PLAs) on federal construction projects.
Under the final rule, federal agencies are encouraged, but not required, to impose PLAs on a case-by-case basis on projects costing at least $25 million. Agencies are given the option to require that contractors submit PLAs at several points in the acquisition process: when offers are due; prior to awarding the project to the successful bidder; and after the project has been awarded (forcing the successful bidder to comply with the PLA or lose the project). The rule does not apply to federally assisted construction projects, although the Obama administration has signaled its intent to expand the executive order to incorporate such projects.
The rule went into effect May 12. ABC will continue to meet with and educate federal agencies on the negative impact PLAs have on the construction industry and the taxpayer. For information and analysis of Executive Order 13502 and the subsequent regulation, visit ABC’s PLA resource page or contact Ben Brubeck at brubeck@abc.org. For daily updates on the PLA issue, be sure to visit the “Truth About PLAs” blog, and Facebook page.
EFFECTIVE SOON: Effective June 5, OSHA’s Severe Violator Enforcement Program (SVEP) will increase the number of OSHA inspections on jobsites where employers are deemed to “endanger workers by demonstrating their indifference to their [workplace safety] responsibilities under the law.” In addition, SVEP will include mandatory follow-up inspections on these jobsites, as well as inspections on worksites run by the same employer where OSHA believes similar hazards might exist. In April, OSHA stated that SVEP is intended to go after employers that have committed violations that qualify as “willful,” “repeated” or “failure to abate,” as well as violations that result in a fatality, expose employees to highly hazardous chemicals, or that involve “high-emphasis” hazards. Examples of high-emphasis hazards are fall hazards in construction and other industries; amputation hazards; lead hazards; and excavation hazards. For more information, including tables outlining the new penalty levels, view OSHA’s SVEP directive.
In addition, OSHA stated publicly that it plans to cite employers for ergonomics hazards under the Occupational Safety and Health (OSH) Act’s General Duty Clause. This precludes the need for a stand-alone ergonomics standard in industries where ergonomics is already a “recognized hazard.”
OSHA also plans to launch two pilot programs directly targeting the construction industry. First, the agency plans to test recordkeeping enforcement on construction and mobile worksites during the time it is conducting a national emphasis program (NEP) on non-mobile worksite recordkeeping. Second, OSHA plans to test the utilization of building inspectors to identify and report suspected safety hazards in 11 cities nationwide.
Effective June 15, OSHA will require employers to notify workers of all hexavalent chromium exposure findings regardless of whether the finding is above the permissible exposure limit (PEL). In May, OSHA issued a final rule revising the employee notification requirements under the February 2006 hexavalent chromium final rule. The revisions stemmed from a 2009 court order when OSHA was directed to either lower the PEL, or amend the notification requirements—OSHA opted for the latter.
Prior to updating the hexavalent chromium final rule, OSHA Feb. 23 announced that it is implementing a national emphasis program (NEP) focused on hexavalent chromium exposure. The NEP will focus on industries where overexposures frequently occur, including construction, and will apply to all businesses, including those with fewer than 10 employees.
Effective June 21, DOL will require federal contractors and subcontractors to post a notice informing employees of certain rights afforded by the National Labor Relations Act (NLRA), in accordance with President Obama’s Executive Order 13496.
The final rule describes the size, content and location requirements for posting the required notice. The rule applies to all federal contractors performing work on contracts worth more than $100,000, and all federal subcontractors at any tier performing work worth more than $10,000 (even if the prime contractor on the project is exempt from the requirement). The notice must be posted physically in a prominent location where employees can easily see it and also must be posted electronically if the employer posts similar notices online.
In direct response to comments filed by ABC, the poster contains revised examples of legal misconduct that also reflect unlawful union activity, rather than solely listing employer activity. In addition, the agency clarified that the new poster will not be used as a “backdoor” DOL enforcement mechanism for the substantive provisions of the NLRA. DOL clearly stated that complaints arising out of union activity will be referred directly to the National Labor Relations Board (NLRB), as has always been the case.
Effective July 19, DOL will require compliance with updated child labor protections under the Fair Labor Standards Act (FLSA). The final rule is “designed to protect working children from hazards in the workplace while also recognizing the value of safe work to children and their families.” Generally, the rule stipulates that work available to 14- and 15-year-olds must be explicitly permitted by DOL. Inversely, all work that is not explicitly prohibited by DOL is available to 16- and 17-year-olds.
With regard to construction-oriented tasks, the final rule maintains the long-standing full prohibition for 14- and 15-year-olds due to construction’s classification as a “high-hazard” industry. 16- and 17-year-olds are now explicitly prohibited from performing certain tasks, including the use of power-driven hoists and work assist vehicles, as well as power-driven reciprocating saws and abrasive cutting discs. From an enforcement standpoint, it should be noted that recent amendments to the FLSA permit DOL to issue a penalty of up to $50,000 for each violation that causes the death or serious injury of an employee under age 18. That amount can be doubled for willful or repeated violations. For more information, including side-by-side comparisons of old vs. new child labor requirements, visit DOL’s child labor webpage.
This was written for informational purposes only and does not constitute legal advice or opinion. |