SUMMER INTERN UPDATE:On April 21, the U.S. Department of Labor’s Wage and Hour Division posted a fact sheet on its website providing clarification on the hiring of summer interns by private sector employers. The Fact Sheet #71 reminded private sector employers, including construction industry employers, that interns most often will be considered employees who must be paid minimum wage and overtime unless their internship or training program meets six specific criteria: (1) the internship is similar to training which would be given in an educational environment; (2) the internship experience is for the intern’s benefit, not the employer’s; (3) the intern does not displace regular employees but works under close supervision of existing staff; (4) the employer who provides the training does not receive immediate advantage from the intern’s activities; (5) the intern is not entitled to a job when the internship ends; and (6) the employer and the intern understand that the intern is not entitled to wages for the time spent in the internship. Construction industry employers wishing to hire summer interns must remember that the internship exclusion from FLSA minimum wage and overtime requirements is “quite narrow” because the FLSA definition of “employ” is “very broad.” Fact Sheet #71 may be accessed at http://op.bna.com/dlrcases.nsf/r?Open=vros-84rs3k.
By Bill Harding, Chapter Attorney
BUILDING INSPECTORS TO LOOK FOR SAFETY VIOLATIONS UNDER OSHA PILOT: The Occupational Safety and Health Administration (OSHA) May 11 announced a new pilot program that will train building inspectors in 11 major cities across the country to look for safety violations on construction jobsites. Secretary of Labor Hilda Solis sent letters in early May to the mayors of the targeted cities proposing a partnership. If the mayors accept, building inspectors in those cities will be encouraged to look for safety violations on the worksites they are inspecting and then notify OSHA. Once notified, OSHA would send one of its own inspectors to the site.
OSHA is targeting at least one city in each of its 10 regions. The targeted cities are: Austin, Texas; Boise, Idaho; Cincinnati, Ohio; Concord, N.H; Greenwood Village, Colo.; Madison, Miss.; Atlanta, Ga.; Newark, N.J.; Oakland, Calif.; Washington, D.C.; and Wichita, Kan.
EPA EXPANDS PROGRAM REQUIRING CONTRACTORS TO BE TRAINED IN LEAD SAFE PRACTICES: The Environmental Protection Agency April 23 announced efforts to expand its Lead-Safe Renovation, Repair and Painting (RRP) program, just one day after the program took effect. Under the current RRP program, contractors performing renovation, repair and painting projects that disturb more than six feet of lead-based paint in most pre-1978 homes, child care facilities and schools must be certifiedand follow specific work practices to prevent lead poisoning. The current rule exempts contractors from the RRP program if the homeowner certifies there is no child under the age of six and no pregnant women living in the home. However, beginning June 22, that exemption will be abolished and contractors renovating any pre-1978 residential building will have to be trained under the RRP program.
In addition, EPA issued a notice of proposed rulemaking to that would require contractors perform dust-wipe testingafter renovations are completed and provide the results of the test to owners and occupants of the building. The proposal also would require that lead dust levels on certain renovations be below regulatory hazard standards. EPA is accepting comments on the notice until July 6. EPA also issued an advance notice of proposed rulemaking seeking to expand the RRP programto include public and commercial buildings, a policy the agency plans to finalize by July 2013. In the advance notice, EPA announced its intention to investigate lead-based paint hazards that may be created by renovations on the interior of public and commercial buildings to determine whether regulations should be issued that address those hazards.
SENATE BILL WOULD RESTORE FUNDING TO OSHA’S VPP PROGRAM:Sen. Mike Enzi (R-Wyo.) April 27 introduced the Voluntary Protection Program Act (S. 3257) that would restore funding for OSHA’s Voluntary Protection Program (VPP). In addition, this bill would prohibit any form of payment for an employer to qualify or participate in the VPP.
Under the VPP, management, labor and OSHA establish cooperative relationships at workplaces that have implemented a comprehensive safety and health management system. Despite the VPP’s proven record of increasing workplace health and safety, OSHA requested less money for the program in its fiscal year 2011 budget and instead plans to focus its resources on traditional enforcement efforts. The bill proposed by Enzi and co-sponsored by Sen. Mary Landrieu (D-La.), would restore the $3.125 million OSHA cutfrom the 2011 budget.
OSHA formally announced the VPP and approved the first site in 1982. Since then, the program has grown to include 2,284 worksites and about 1 million workers. The average VPP worksite has a Days Away Restricted or Transferred (DART) case rate of 52% below the industry average.
PRE-HIRE AGREEMENT UPDATE: On April 20, the United States Court of Appeals for the Seventh Circuit issued a decision involving an Indiana concrete contractor which serves as a stark reminder to all construction companies about the danger of pre-hire agreements. The company signed two different pre-hire agreements with the Laborers Union. The first agreement covered all concrete work performed anywhere in the state. The second agreement covered all work performed anywhere in the state and four counties in an adjacent state. The company president did not read the agreement, alleged that he thought each agreement covered only the project he was working on at the time he signed the agreement, and promptly discarded the agreement and operated on a non-union basis throughout the state and during the time covered by the pre-hire agreements. As expected, the union found out, filed an unfair labor practice charge that the company had repudiated the agreement before the end of its term, and the NLRB General Counsel issued a complaint. An ALJ found that the company violated the NLRA and the NLRB agreed. The Circuit Court enforced the NLRB judgment and was not very sympathetic with the company’s argument that the union waived its right to challenge the company’s actions by waiting several years to file the ULP charge after learning of the repudiation of the agreement. The court noted that the company president told the union business agent on two occasions that the company would not comply with the pre-hire agreement but the ALJ found the testimony of the company president to be not credible and, instead, credited the testimony of the union business agent that he never spoke with the company president after he learned that the company was not complying with the agreement. The Circuit Court deferred to the credibility determinations of the ALJ and enforced the order against the company for both back pay and benefit fund contributions. The Circuit Court decision is not very surprising, but it is surprising that a construction company owner would sign a pre-hire agreement without reading the agreement or at least seeking legal advice before signing the agreement. Pre-hire agreements (collective bargaining agreements signed without any showing that a majority of the employees support the union) are legal in the construction industry and when a contractor signs such an agreement, the contractor must follow the agreement until the end of its term. Failure to do so will undoubtedly lead to the same result found in this case. By Bill Harding, Chapter Attorney