U.S. Appeals Court
Associated Builders and Contractors (ABC) today welcomed a decision by the U.S. Court of Appeals for the D.C. Circuit to invalidate the National Labor Relations Board’s (NLRB) “notification of employee rights” notice posting rule. A three-judge panel struck down the rule on the grounds that the NLRB had overstepped its authority under law. ABC General Council Maurice Baskin, a shareholder with Littler, argued the case before the appeals court.
“This is great news for employers and employees alike,” stated ABC Vice President of Federal Affairs Geoff Burr. “The NLRB’s notice posting rule is a perfect example of how the pro-union board has abandoned its role as a neutral enforcer and arbiter of labor law.
“The poster was flawed from the beginning when it only detailed how workers have the right to join a union, but omitted their rights to decertify a union,” Burr added. “ABC will continue to fight the NLRB’s politically motivated policies that threaten to paralyze the construction industry in order to benefit the special interests of politically powerful unions.”
Today’s action by the U.S. Court of Appeals for the D.C. Circuit supports a decision issued in April 2012 by the U.S. District Court for South Carolina, stating that the NLRB does not have the statutory authority to require business owners to post a biased poster.
Deadline to Use New I-9
Form May 7
All employers are required to use the revised I-9 Form beginning May 7*. Employers who fail to use the new form (revision date 03/08/13) on or after that date may be subject to penalties.
The revised form, released by the Department of Homeland Security U.S. Citizenship and Immigration Services (USCIS) in March, must be completed and retained for all employees to verify their employment eligibility, including U.S. citizens and non-citizens.
Employers should not complete a new I-9 Form for current employees if a properly completed I-9 Form is already on file.
Additional information can be found on the USCIS I-9 website and in their “Handbook for Employers, Guidance for Completing the I-9 Form.”
ABC also will be holding a free webinar for members Thursday, May 16, “Learn How to Comply with Today’s Hiring Requirements,” that will cover I-9 Forms.
* The original USCIS news release incorrectly listed the effective date as May 8. Since then, the agency has clarified that the effective date is May 7. The date has been corrected on all references on ABC’s website.
To implement a commitment it made to settle a challenge to new storm water rules for construction and development (C&D) sites, U.S. EPA issued in yesterday's Federal Register (78 Fed. Reg. 19434) a proposed rule that (1) formally deletes the numeric turbidity standard for storm water discharges from C&D sites, and (2) offers clarification to several best management practices (BMP) required by operators of C&D sites. A copy of the proposed rule can be accessed here.
Formal deletion of the new turbidity standard was expected. EPA had previously agreed to an indefinite stay of the hotly-contested standard. However, the following clarifications should help homebuilders, commercial contractors, and other operators understand their requirements and avoid unnecessary expenses:
- Adding a definition of the term "infeasible," so that operators' requirements are tied to what is technologically and economically achievable compared to best industry practices, instead of tied what an individual operator can afford;
- Clarifying that the requirement to control storm water volume and velocity to minimize soil erosion (i) does not apply to an entire C&D site, but only to the portions where a storm water discharge occurs, (ii) begins at the site depending on the nature of the construction activity, and (iii) does not apply when construction activity has ceased;
- Clarifying that the requirement to take steps to minimize downstream erosion applies only at the point of the discharge from the site, and does not require remediation of downstream erosion caused by other upstream sources;
- Clarifying that the requirement to provide/maintain natural buffers around waterways to remove pollutants and increase infiltration is limited to jurisdictional waters, and includes other pollutants in addition to sediment;
- Clarifying that the requirement to minimize soil compaction and disturbance of topsoil is not a rigid requirement for all sites, but is site-specific;
- Clarifying that the requirement to stabilize disturbed areas when construction is complete or interrupted for more than two weeks is not required for areas whose intended function necessitates that they not be stabilized; and
- Clarifying that the requirement to minimize exposure of materials brought to the site is not required when no pollutants will be discharged or the materials are intended for outdoor use.
For several of the clarifications, EPA offers examples to assist operators. The Agency is accepting comments on the proposed rule until May 31, 2013. Frost Brown Todd's Environmental Practice Group and Construction Law Group maintain a full service practice for homebuilders, construction contractors, and other operators of C&D sites. A copy of the storm water practice profile can be accessed here.
The House Appropriations Labor-HHS Subcommittee held a hearing on Wed., April 10 titled, “Regulatory Approaches to Foster Economic Growth.” ABC VP of Federal Affairs Geoff Burr testified on behalf of ABC, as well as the Coalition for a Democratic Workplace (CDW).
ABC’s testimony discussed the NLRB’s invalid “recess” appointments, as well as the “ambush” election and poster rulemakings. ABC also discussed DOL’s “persuader” rule and PLAs (specifically, DOL-funded projects using PLAs—for example, the New Hampshire Job Corps Center project). The testimony framed these issues in the context of burdensome rules and poorly crafted policies being implemented under questionable legal authority, leading to legal challenges and uncertainty for employers, employees and other stakeholders.
Other Majority witnesses included former Congressional Budget Office director Douglas Holtz-Eakin (representing the American Action Forum) and Gene Scalia, an attorney with Gibson Dunn (representing RILA re: the NLRB Specialty Healthcare “micro-unit” union organizing decision). The Minority invited Damon Silvers, Director of Policy and Special Counsel, AFL-CIO, to testify.
This link will take you to a page on the Subcommittee website where you will be able to download ABC’s written testimony when it is posted.
ABC Critical of President
Obama’s Renomination of
Associated Builders and Contractors (ABC) today criticized President Obama’s renomination of Mark Pearce to the National Labor Relations Board (NLRB) as a move to promote the narrow policy goals of politically powerful labor unions.
“During Chairman Pearce’s tenure, the NLRB majority has pressed forward in its wholesale transformation of American labor policy on behalf of big labor bosses,” said ABC Vice President of Federal Affairs Geoff Burr. “These actions include silencing employers during the union election process through ‘ambush’ style union elections; preventing employee access to balanced information about their labor rights; and trampling free speech and private property rights by inviting greater union intimidation of employers, employees and their customers.
“In February, ABC also criticized the president’s decision to renominate Sharon Block and Richard Griffin to seats they are currently occupying in violation of the United States Constitution,” Burr added. “Based on today’s nomination, and the president’s actions earlier this year, it could not be more clear that the administration is more interested in playing politics than seating a qualified, impartial slate of board members.
“Amid today’s economic challenges, we cannot afford to let the board continue its radical pro-union agenda, which will further jeopardize economic recovery and threaten to harm the nearly 87 percent of the construction industry that is not affiliated with any labor organization,” Burr stated.