POLITICAL CORRECTNESS UPDATE: On January 12, the United States Court of Appeals for the Third Circuit ruled against “political correctness.” Even though the decision involved an insurance industry employer instead of a construction industry employer, the decision is so “mentally refreshing” that it is of interest to construction industry employers. A 56 year old employee was terminated as part of a corporate reorganization and his duties were divided among other employees who were both younger and older than the 56 year old employee. In addition, the employer hired a 47 year old employee in the same department with different duties, a different job title, and a salary almost $55,000.00 higher than the terminated employee’s salary. As you might expect, the 56 year old ex-employee filed a federal court action under the Age Discrimination in Employment Act (ADEA) claiming that he was selected for termination due to his age because at one meeting his supervisor called him “the old man of the operation.” The federal trial court ruled in favor of the employer and the employee appealed to the Circuit Court. The Circuit Court panel also ruled against the employee and concluded that the employee who was hired in the same department and who was nine years younger was performing duties that were “so significantly different” that it was not proper to compare the positions. The court also looked at the one supervisory comment and concluded that it was not “sufficient evidence” in support of a case of age discrimination. The court went on to state: “It would be unfortunate if the courts forced the adoption of an employment culture that required everyone in the structure to be careful so that every remark made every day passes the employment equivalent of being politically correct lest it be used later against the employer in litigation.” Amen. By Bill Harding, Chapter Attorney
APPEALS COURT UPHOLDS E-VERIFY REQUIREMENT IN OKLAHOMA: The U.S. Court of Appeals for the Tenth Circuit Feb. 2 upheld Oklahoma’s ability to require contractors and subcontractors to verify employees through E-Verify, the federal employment verification system, before being allowed to work on state projects.
The original lawsuit was filed in 2008 by the Chamber of Commerce with the support of the ABC Oklahoma Chapter and other businesses groups. The appellate court overturned an injunction granted by the U.S. District Court for the Western District of Oklahoma that agreed with plaintiffs that the E-Verify provision in the Oklahoma Taxpayer and Citizen Protection Act of 2007 was preempted by federal law. According to the appellate court, the provision was not preempted because it did not contain civil or criminal sanctions prohibited by federal law and it did not conflict with existing policies or laws on immigration.
In addition to challenging the E-Verify requirement, the original lawsuit challenged a section of the act that allowed workers who were U.S. citizens to sue their employer for discrimination if they are fired or laid off while undocumented workers remained employed, and a section that required contractors to withhold state income tax at the highest income tax rate for independent contractors who do not provide employment eligibility paperwork. The appeals court upheld the injunctions on these provisions noting that they both conflict with congressional policies and/or laws on immigration.
ABC SUPPORTS RESOLUTION TO DELAY EPA REGULATION OF GREENHOUSE GASSES:ABC Feb. 17 supported Sen. Lisa Murkowski’s (R-Alaska) Jan. 21 disapproval resolutionto stop the Environmental Protection Agency (EPA) from regulating greenhouse gases under the Clean Air Act (CAA).
Murkowski’s resolution, cosponsored by 37 republicans and three democrats, followed EPA’s Dec. 7 announcement that greenhouse gases are a threat to public health. The endangerment announcement was made as a first step to regulating greenhouses gases, which include carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluororcarbons and sulfur hexafluoride, under the Clean Air Act.
The Murkowski disapproval resolution seeks to delay EPA’s regulation of greenhouse gases until after Congress has had a chance to enact legislation that specifically addresses the issue. Murkowski notes in her disapproval resolution that regulation of greenhouse gases under the CAA could force businesses to cut jobs or close entirely; restrict domestic energy production; and make consumer goods more expensive and housing less affordable. “The Clean Air Act was written by Congress to regulate criteria pollutants, not greenhouse gases, and its implementation remains subject to oversight and guidance by elected representatives,” Murkowski said. “We should continue our work to pass meaningful energy and climate legislation, but in the meantime, we cannot turn a blind eye to the EPA’s efforts to impose back-door climate regulations with no input from Congress.”
“EPA’s proposed actions will no doubt impede economic recovery through permitting delays, as well as increased energy and materials prices,” ABC stated. “These developments will surely hamper much-needed construction projects and ultimately, contribute to additional and unnecessary job loss.”
ABC MEMBERS ARE RECOGNIZED AS 100 BEST COMPANIES TO WORK FOR: Five of the six construction firms on Fortune magazine’s list 100 Best Companies to Work For are ABC members. They are: PCL Construction Enterprises, DPR Construction, Balfour Beatty Construction, Gilbane, and TDIndustries. The winners were chosen based on an extensive employee survey that addresses management credibility, job satisfaction and camaraderie, and a “culture audit” that includes information on benefit program, hiring and diversity.
ABC’S ASK A LAWYER:
Question: What do I do when ICE is knocking at my door?
We have heard some grumblings that the U.S. Immigration and Customs Enforcement (ICE) is issuing Notices of Inspection letters to local contractors requesting access to their I-9s and related documents. This article will explain how best to respond to the ICE Notice of Intent.
What is a Notice of Intent: This letter is the first step in an ICE Audit. This letter requires businesses to turn over I-9s and related records, generally for a specific time period. ICE may also want corporate records. While the ICE investigator may demand to see your records immediately, employers are allowed three (3) days to comply, and if good reason exists, you can ask for more time.
How to Respond: During the next three days, you should gather relevant I-9s and supporting documentation. You need to review your I-9 files, make corrections to the paperwork, and make sure its all in order. This includes making sure you have copies of appropriate documents to support eligibility.
Make Copies: Make copies of the I-9s and supporting documentation before providing ICE with the original I-9s and supporting documents.
Wait: ICE will take the documentation back to their offices for review to determine whether your documentation is correct. The audit may take from 1 to 18 months to complete.
Results: ICE will return the documents and may issue one of the following:
a. Notice of Inspection Results – notifies business that it is in compliance;
b. Notice of Suspect Documents – advises that at least one employee is unauthorized to work and provides opportunity to correct;
c. Notice of Discrepancies – advises that the documentation provided is not sufficient to determine eligibility;
d. Notice of Technical or Procedural Failures – identifies technical violations and give 10 days for correction;
e. Warning Notice – advises of substantive violations that do not warrant a penalty;
f. Notice of Intent to Fine (NIF) – issued for substantive, uncorrected technical, knowingly hire and continuing violations.
Notice to Employees: You must inform the employees whose I-9s could not be authenticated of the problem and give them an opportunity to correct any mistakes or provide proper work authorization documents. If the employee does not provide documents to ICE, the employee must be terminated.
If you have any questions about an I-9 Audit or your I-9 procedures, feel free to contact Craig Martin of Lamson Dugan and Murray, 397-7300, cmartin@ldmlaw.com.
Training Classes
Management & Safety Class Schedule
FEBRUARY & MARCH 2010
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
¨ February 23, 2010 – 7:00 a.m. – 5:30 p.m. – OMAHA
¨ February 25, 2010 – 7:00 a.m. – 5:30 p.m. – LINCOLN
¨ March 4, 2010 - – 7:00 a.m. – 5:30 p.m. – LINCOLN
¨ March 11, 2010 -– 7:00 a.m. – 5:30 p.m. – NORFOLK
¨ March 18, 2010 - – 7:00 a.m. – 5:30 p.m. – OMAHA
¨ March 24, 2010 - – 7:00 a.m. – 5:30 p.m. – LINCOLN
¨ March 31, 2010 - – 7:00 a.m. – 5:30 p.m. – OMAHA
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.
¨ March 2, 9, 16, 2010 – 7:00 – 5:30 p.m. – LINCOLN
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
¨ February 24, 2010 – 7:00 – 11:00 a.m. – LINCOLN
¨ February 25, 2010 – 7:00 – 11:00 a.m. – OMAHA
¨ February 25, 2010 – 7:00 – 11:00 a.m. – OMAHA
¨ March 10, 2010 – 7:00 – 11:00 a.m. – NORFOLK
¨ March 16, 2010 – 1:00 – 5:00 p.m. – OMAHA
¨ March 18, 2010 – 1:00 – 5:00 p.m. – LINCOLN
¨ March 30, 2010 – 7:00 – 11:00 a.m. – OMAHA
Mobile Crane Safety Training
A workshop for all managers, supervisors, operators and riggers – presented by the Crane Institute of America. Participants will learn what the crane standards consist of. This five day class will involve classroom time and actual hands on operation. At the completion of the five day class applicants will have the opportunity to be certified for all three cranes.
$895.00 for first person from ABC Member Company, $825.00 for each additional person from ABC Member Company
$1,300.00 for each person from Non-Member Company
$450 for each recertification
¨ March 22 – 26, 2010 – 8:00 a.m. – 4:30 p.m. - LINCOLN
-------------------------------------------------------------------------------------------------------------------------------------
Omaha Classes are held at the Education Center, 2602 Harney Street, Omaha
Lincoln Classes are held at the Training Center, 830 Westgate Blvd., Lincoln
PLEASE DUPLICATE THIS FORM FOR MULTIPLE CLASSES
Company: Address: Phone: Fax:
Names (please print): Class/Date: Cost:
Class/Date: Cost:
Class/Date: Cost:
Return Registration Form and Check Payable to Associated Builders & Contractors
830 Westgate Blvd., Lincoln, NE 68528 FAX 402-477-4522
Email-debh@abcnebraska.org