OBAMA ADMINISTRATION EXECUTIVE ORDERS: On January 30, 2009, President Obama issued three executive orders (EO) that impose new requirements and restrictions on construction companies performing work under a federal contract.
COMPLIANCE: Employers will not be required to comply with any of these orders until regulations implementing each of the orders have been issued. However, legal challenges to each of the orders are expected, so delays in the compliance deadlines related to litigation are possible.
WHAT ABC IS DOING: ABC, together with a coalition of other business organizations, is analyzing each of the orders in detail in order to identify the anticipated adverse impacts that they could impose and, therefore, the
concerns that need to be raised on ABC members’ behalf. A summary of each executive order and its anticipated adverse impact on affected employers is provided below. In addition to submitting comments in response to each rulemaking, ABC will also be active in the expected litigation to challenge the executive orders and implementing regulations.
EXECUTIVE ORDER 13494: Of the three orders issued, EO 13494 has generated the greatest concern within the employer community to date. The order prohibits affected contractors from charging the government for, and from being reimbursed by the government for, the employer’s costs for engaging in “any activities undertaken to persuade employees or to exercise or not to exercise…(their) rights to organize and bargain collectively:” The order does not prohibit employers from engaging in these activities, only from being reimbursed by the government for the costs incurred to engage in these activities.
The following activities and costs will be, at a minimum, the activities that will be subject to the order’s prohibition:
Preparing and distributing materials;
Hiring or consulting legal counsel or consultants;
Holding meetings including paying the salaries of the attendees at meetings held for this purpose;
Planning or conducting activities by managers, supervisors, or union representatives during work hours.
ABC’S CONCERNSSS WITH THIS ORDER: To date, ABC has identified the following concerns about this specific executive order:
CONCERN #1: It is quite possible (and more than likely) that the list of activities and unallowable costs will be expanded.
CONCERN #2: Until the implementing regulations are issued, it cannot be determined what employers will be required to do in order to identify, segregate, and account for the costs they incur engaging in such activities.
CONCERN #3: The order is unclear as to whether disclosures made to the government to prove unallowable costs have been identified and segregated could be accessed by the public.
EXECUTIVE ORDER 13495: This order applies to contractors and subcontractors who take over a service contract (i.e., the successor contractor) covered by the Service Contract Act from the employer who was previously providing the service (i.e., the predecessor contractor). It will require the successor contractor to give the employees of the predecessor contractor a right of first refusal to become employees of the successor contractor and continue working under the contract in positions for which they are qualified.
ABC’S CONCERNS WITH THIS ORDER: To date, ABC has identified the following concerns about this specific executive order.
Until the regulations to implement this order are issued (the order requires the regulations to be issued within 180 days [July 31, 2009]) the full extent of the impact of this order cannot be determined. At the current time, it appears that this order will only affect ABC members who are performing maintenance work under a contract that is covered by the Service Contract Act.
CONCERN #1: Until the implementing regulations are issued, the extent of the “related rules, regulations, and orders” to which the order applies cannot be determined. However, it is likely that the Secretary of Labor will construe “related rules, regulations, and orders” includes compliance with the National Labor Relations Act, and could include the other labor laws, such as the Fair Labor Standards Act, the Davis-Bacon Act, and the Occupational and Health and Safety Act, to name a few.
CONCERN #2: The order expressly gives the Secretary of Labor the authority to direct the contracting department or agency to cancel, terminate or suspend the contract of those who failed to post the notice or comply with its contents. The order does not define “compliance”, nor does it set any duration for contract debarment. Thus, it remains unclear if one violation would warrant debarment, or if it would take many. In addition, it is not clear how long the Secretary could impose debarment.
CONCERN #3: Although the order expressly gives the Secretary of Labor the authority to direct the contracting department or agency to cancel, terminate or suspend the contract of a non-compliant employer, the order also authorizes the Secretary to “develop recommendations” on additional requirements and sanctions if the Secretary find that the authority given to the Secretary under the order is insufficient to achieve the order’s purpose.
TITLE VII UPDATE:Some employers provide unisex bathrooms for their employees. Some employers have made this change because of federal court decisions granting additional Title VII protection to transgender employees. In the construction industry, one bathroom is often the only option. On January 26, 2009, the federal district court for the southern district of New York ruled that providing unisex bathrooms is not a violation of Title VII. In her lawsuit, the female employee complained that the unisex bathroom provided by her employer was “sometimes occupied when she wanted to use it” and that unisex bathrooms provided at multiple locations by the employer were “not as clean as she would like them to be.” The federal district court granted summary judgment to the company and concluded that unisex bathrooms are not “objectively hostile” to women and that the female employee presented no evidence that she was subjected to invasions of privacy, sex-based ridicule or insults, or threatening behavior by male supervisors or coworkers. The judge concluded that “mere inconvenience” did not amount to conduct which was so “severe or pervasive” that it created an environment which was hostile or abusive. Construction industry employers who provide unisex bathrooms for their employees on construction jobsites or elsewhere can take some comfort in this decision. However, construction industry employers must continue to be alert for any gender-based discrimination or harassment. If any such conduct is discovered, it should be halted immediately and company supervisors should take steps to ensure that such Title VII prohibited conduct does not occur in the future. By Bill Harding, Chapter Attorney
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Training Classes
Management & Safety Class Schedule
First Aid/CPR Classes
$50.00 each attendee – Member Price/$60.00 each attendee – Non-Member
Recertification only - $40.00 each attendee – Member Price/$50.00 each attendee – Non-Member Price
¨ March 12, 2009 – 1:00 – 5:00 p.m. – OMAHA
¨ March 18, 2009 – 1:00 – 5:00 p.m. – KEARNEY
¨ March 24, 2009 – 7:00 – 11:00 a.m. – LINCOLN
¨ March 26, 2009 – 7:00 – 11:00 a.m. – OMAHA
¨ April 1, 2009 – 7:00 – 11:00 a.m. - OMAHA
OSHA 10 Hour Class
OSHA requires a competent person on all job sites. This course ensures that your people have the necessary training to comply with OSHA standards CFR 1926.32(f) for a competent person. Training includes OSHA Construction Standards CFR 29 1926, Scaffolds, Ladders and Stairways, Housekeeping, Personal Tools, Electrical Hazards, Fall Protection, Materials Handling, Hazardous Communications and much more!
**CFR 192 OSHA Regulations Book for the Construction Industry with new steel erection standards will be available for $25.00** each for class participants.
$135.00 each attendee – Member Price/$240.00 each attendee – Non-Member Price
¨ March 10, 2009 – 7:00 a.m. – 5:30 p.m. – OMAHA
¨ March 12, 2009 – 7:00 a.m. – 5:30 p.m. – LINCOLN
¨ March 19, 2009 – 7:00 a.m. – 5:30 p.m. – KEARNEY
¨ March 25, 2009 - 7:00 a.m. – 5:30 p.m. – OMAHA
¨ March 26, 2009 - 7:00 a.m. – 5:30 p.m. – LINCOLN
¨ April 1, 2009 - 7:00 a.m. – 5:30 p.m. – OMAHA
Forklift/All Terrain Training
The OSHA standard 29CFR1926.602(d) requires employees who operate forklifts be trained in both the classroom and through a practical exercise on the type of equipment that they will be running in the field.
$125.00 each attendee – Member Price/$200.00 each attendee – Non-Member Price
¨ March 10, 2009 – 7:00 a.m. – 5:30 p.m. – OMAHA
¨ March 4, 2009 - 7:00 – 11:00 a.m. – OMAHA
¨ March 5, 2009 – 1:00 – 5:00 p.m. - LINCOLN
30 Hour OSHA Class
Federal Law requires each company have a designated trained safety coordinator. This will give your foremen, supervisors, safety directors or safety coordinators the expertise to comply with all OSHA and State requirements. This is an in-depth look at CFR 1926 and 1920 and NE 757 as they affect construction. Price includes study materials
$395.00 each attendee – Member Price / $595.00 each attendee –Non-Member price.
¨ April 2, 9, 16, 2009 – 7:00 a.m. – 5:00 p.m. - LINCOLN
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