ABC SUGGESTS CHANTES TO H-2B VISA PROGRAM: ABC September 19 submitted comments to the Department of Homeland Security (DHS) suggesting further changes to proposed revisions of the H-2B temporary worker program that permits employers to hire foreign workers to come to the United States and perform nonagricultural work when there are no qualified or willing U.S. workers available. In its comments, ABC expressed support for DHS’ efforts to streamline the current process and commended changes that would reduce the amount of time H-2B workers have to wait outside the U.S. before filing extensions, status changes or applying for readmission. ABC also supported the DHS’ proposal to change the definition of “temporary need” to include projects that last up to three years. “ABC agrees with the Department’s position that a more flexible rule that limits temporary work to one year but explicitly allows it to last up to three years better comports with the nature of temporary work in the H-2B context,” and the construction industry in particular,” ABC noted in its comments.
However, ABC agreed with a number of concerns the Small Business Administration expressed about the potential cost impact on small businesses that DHS had not considered in the preparation of the proposed rule. In addition, ABC cited discrepancies between DHS’ proposed H-2B rulemaking, and the May 22 proposed rule issued by the Department of Labor (DOL), and reiterated opposition to DOL’s proposal to require employers to first recruit workers through labor unions prior to being eligible for the H-2B program. “Nonunion construction employers have encountered numerous instances in which labor organizations have intentionally misused this requirement in order to significantly delay or otherwise prevent non-union employers from successfully processing requests for H-2B visas within the limited timeframes provided,” ABC stated in its comments. “Organized labor should not be given an arbitrary preference, especially given the aforementioned circumstances.
ABC OPPOSES INCREASED PENALTIES FOR PROTECTIVE EQUIPMENT VIOLATIONS: ABC Sept. 18 filed comments with the Occupational Safety and Health Administration (OSHA) expressing concerns regarding a proposed rule that would allow employers to be held liable on a per-employee basis for failing to provide the proper personal protective equipment (PPE) and training to workers.
ABC noted in its comments that it supported the spirit behind the rule, but could not support the rule because it failed to define the circumstance in which an employer would be subjected to the per-employee penalties. ABC pointed out that the rule, as currently written, could be interpreted to mean that all PPE and training violations would be subjected to per-employee penalties although OSHA insists that it would only apply to flagrant violations. “The final rule’s regulatory language, as opposed to the preamble, needs to be revised to make absolutely clear that the more expansive interpretation is not intended and cannot arise out of this rulemaking, i.e., that any (and every) PPE and training violation will not be ‘considered a separate violation,’” ABC noted in its comments.
The proposed rule also fails to provide guidance on what will be considered appropriate documentation for proving that an employee has completed the required training. ABC pointed out that this could result in multiple citations for non-compliance because the auditor deemed the documentation to be inadequate. “The final rule should also include specific guidance on what evidence OSHA will require (or otherwise expect) employers to provide in order to document that the requisite training has in fact been provided,” ABC stated. “This is not the type of information that employers should be faced with learning for the first time during an audit.”
DAVIS-BACON UPDATE: On August 29, 2008, the United States District Court for the Eastern District of New York issued a decision which may have a tremendous impact on construction industry employers throughout the country. The case involved the New York statute which contains essentially the same provisions as the Davis-Bacon Act. On Davis-Bacon projects, prevailing wages are determined, as are prevailing benefits, and contractors working on the project are obligated to make payments directly to employees working on the project or irrevocably to a trust. The New York case focused on the payments out of the trust fund and refused to dismiss the indictment against the attorney establishing the Contractor’s Benefit Trust (CBT).
CBT complied with all ERISA requirements but the U.S. District Attorney in Brooklyn argued that payments out of CBT violated both federal and state prevailing wage laws because CBT funds were used for the purchase of welfare benefits for company employees who never worked on a prevailing wage project. In some instances, the benefits paid by CBT inured solely or at least mostly to the benefit of the owners and operators of the construction companies themselves. In refusing to dismiss the indictment, the federal court noted that the payments to CBT or any fringe benefit plan for workers who work on a prevailing wage project must be reasonably related to the benefits actually received by such an employee. This decision has the potential to have a tremendous impact on contractors who work in multiple areas under union contracts or who sign project labor agreements requiring payments into union benefit funds. In many instances, the workers move to other projects in other areas or states and never qualify for benefits due to the waiting period in such benefit funds. This is especially so if the project labor agreement is signed on a prevailing wage project and the contractor only works on that single project before moving to another state. Under the New York ruling, the fact that the waiting period provision complies with ERISA may not be a defense that the payments may not be counted for compliance with Davis-Bacon prevailing wage and benefit determinations. Any contractors who make payments into benefit funds in various states and rotate their employees from project to project within those states, and any contractors who make it a point to sign project labor agreements on Davis-Bacon projects in other states, should be aware of the district court determination in the New York case and should “stay tuned” for reports on the final determination in the New York case either at the trial court level or on appeal. The New York decision raises many more questions about Davis-Bacon compliance than it answered. By Bill Harding, Chapter Attorney
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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.
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