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BLUE COLLAR WORKERS HAPPY, BUT MAJORITY OF AMERICANS APPROVE OF LABOR UNIONS

A recent Harris Poll reports that 85% of blue-collar workers believe their lives are heading in the right direction, higher than any similar poll in the last 20 years.  Approximately 86% are “satisfied” with their jobs and 90% are even “proud” of their work.  Ironically, it turns out that blue collar workers are some of the most satisfied people in American society.  These results may explain why President Trump polls better among blue collar workers than the general population.

At the same time, however, a separate poll conducted by Gallup reported in late August, 62% of Americans approve of labor unions, the highest level in 15 years.  The support is strongest among those age 18-34, and nearly 40% of Americans would like unions to have more influence, compared to 29% in 2012. 

SUPREME COURT DECISION RESULTS IN WAVE OF LAWSUITS AGAINST UNIONS

A dozen or more lawsuits have been filed against various state and local government unions across the country in light of the Supreme Court ruling in the Janus case, seeking refunds of union dues and fees employees were forced to pay to keep their jobs.  In at least one of the cases, the union defendant conceded the issue and refunded the involuntary dues and fees.  Another pending case, if successful, might result in refunds of as much as $100 million.  Thus, the Janus decision not only reduces future income to public sector unions, but may result in significant paybacks to those forced to participate, at least in situations within the relevant statute of limitations. 

On a related issue, the recent momentum toward "right-to-work laws" has at least taken a temporary halt in one state, Missouri.  Since 2012, six states have become right-to-work, including Michigan and Wisconsin.  However, on August 7, 2018, voters in Missouri repealed their right-to-work law.  Some commentators report that those opposed to Missouri's right-to-work law spent more than five times the amount that proponents did in the campaign leading to the vote, and the Republican governor of Missouri who has supported the legislation did not take part in the campaigning due to his own political problems. 

Many say that right-to-work laws result in reduced votes for Democratic candidates of around 3%, and many former industrial states with large union representation have become more Republican since enacting their right-to-work laws. 

AFL-CIO UNILATERALLY IMPLEMENTS CONTRACT AGAINST ITS OWN WORKERS, WHO ANNOUNCE STRIKE

Some of the most anti-union employers in the entire country are the unions themselves.  This is a shocking but true statement.  There is a long history of labor unions opposing their own employees forming unions, generally feeling that such actions are disloyal to the employer union. 

A recent example of this occurred at the headquarters of the largest U.S. union federation, the AFL-CIO.  Due to its inability to negotiate a contract with the union representing its own employees, the AFL-CIO announced that it was unilaterally imposing a new contract on the workers, one the employees had unanimously rejected.  Its terms included reduced sick leave, no wage increases and weakened lay-off protection.  A union spokesperson for the workers said that: "If a company tried to force a contract like this, we believe that the AFL-CIO would deplore the company as anti-union."

The union representing about 50 janitors, secretaries and accountants voted to authorize a strike against the AFL-CIO. 

SOCIAL SECURITY MISMATCH LETTERS TO RETURN

In July of 2018, the Social Security Administration (SSA) announced that it will be resuming the practice of sending "no-match" letters to employers when the information on tax forms is not consistent with SSA records.  The letters are expected to resume in 2019, and as before, will request that the businesses and employers take steps to correct the information within sixty (60) days.  The practice of issuing such letters actually begin prior to the enactment of the immigration laws, due to a desire to apply Social Security funds to the proper account.  Today there is more than $1.5 trillion kept in SSA's earnings suspense file where funds are kept that are contributed but cannot be matched with SSA records.  The practice of sending out such no-match letters has been started and stopped on many occasions over the years, and was most recently discontinued in 2012. 

Immigrations and Customs Enforcement (ICE) has not commented on whether the letters will be used for immigration enforcement purposes.  In the past, the letters were sometimes used as evidence that a particular worker could be an undocumented immigrant who is using someone else's Social Security number.  Of course, there could be many reasons for the mismatch, including clerical errors, name changes, and criminals who steal identities for other purposes.

JUDGE BLOCKS ENDING OF TPS STATUS OF VARIOUS COUNTRIES

Temporary Protected Status (TPS) is an immigration status granted to citizens of certain countries that have experienced various emergencies, such as natural disasters or civil wars, allowing them to seek refuge in the U.S. and be allowed to work.  Currently citizens from 10 countries may have this status, but over the last year the Trump administration announced it was ending TPS for citizens of four countries, El Salvador, Haiti, Nicaragua, and Sudan, because the emergencies that had justified giving them refuge in the U.S. had ended.  On October 3, 2018, a federal judge in California blocked the administration from ending the TPS status of citizens from these countries.  There were basically two reasons for the decision, one being that the administration violated the Administrative Procedure Act that deals with the rules agencies are supposed to follow before they make new rules or change existing rules.  The second reason for the ruling was that there was evidence of discriminatory motive, similar to the arguments made in the lawsuits challenging the administration's efforts to end the Deferred Action for Childhood Arrivals (DACA) program.  It is likely that these issues will end up in the U.S. Supreme Court. 

OSHA ANNOUNCES A NEW ATTITUDE TOWARD WORKER SAFETY INCENTIVE AND DRUG TESTING PROGRAMS

On October 11, 2018, OSHA announced that it is reversing the safety incentive programs guidelines issued during the Obama administration. What does this mean for employers? It means that employers can offer incentives to employees, such as pizza parties, cash bonuses, or other prizes, as incentives for days without reported injuries or accidents in the workplace. This also means that employers may conduct post-accident drug testing, at least if it is conducted consistently on any employee whose conduct may have contributed to the accident, and not merely the employee who was injured in an accident.  According to OSHA, it believes that many employers who implement safety incentive programs and/or conduct post-incident drug testing do so to promote workplace safety and health. In addition, evidence that the employer consistently enforces legitimate work rules (whether or not an injury or illness is reported) would demonstrate that the employer is serious about creating a culture of safety, not just the appearance of reducing rates. 

OSHA states that incentive programs can be an important tool to promote workplace safety and health. One type of incentive program rewards workers for reporting near-misses or hazards, and encourages involvement in a safety and health management system. Positive action taken under this type of program is always permissible under 29 C.F.R. § 1904.35(b)(1)(iv). Another type of incentive program is rate-based and focuses on reducing the number of reported injuries and illnesses. This type of program typically rewards employees with a prize or bonus at the end of an injury-free month or evaluates managers based on their work unit’s lack of injuries. Rate-based incentive programs are also permissible under § 1904.35(b)(1)(iv) as long as they are not implemented in a manner that discourages reporting. Thus, if an employer takes a negative action against an employee under a rate-based incentive program, such as withholding a prize or bonus because of a reported injury, OSHA would not cite the employer under § 1904.35(b)(1)(iv) as long as the employer has implemented adequate precautions to ensure that employees feel free to report an injury or illness.

A statement that employees are encouraged to report and will not face retaliation for reporting may not, by itself, be adequate to ensure that employees actually feel free to report, particularly when the consequence for reporting will be a lost opportunity to receive a substantial reward. An employer could avoid any inadvertent deterrent effects of a rate-based incentive program by taking positive steps to create a workplace culture that emphasizes safety, not just rates. For example, any inadvertent deterrent effect of a rate-based incentive program on employee reporting would likely be counterbalanced if the employer also implements elements such as:

  • an incentive program that rewards employees for identifying unsafe conditions in the workplace;
  • a training program for all employees to reinforce reporting rights and responsibilities and emphasizes the employer’s non-retaliation policy;
  • a mechanism for accurately evaluating employees’ willingness to report injuries and illnesses.

Safety incentive programs have been criticized by some as creating a disincentive for employees and supervisors to report workplace accidents, injuries, near misses or other incidents. No one wants to be that guy who reports the incident that keeps his whole department from getting a prize or party. Another concern is that failure to report incidents, even minor incidents and near misses, defeats the whole purpose of a proactive safety program, which is to generate as much information as possible on trends so that steps can be taken to curb future problems. Thus, the Obama administration frowned on such programs and discouraged them.

Now that the restrictions on safety incentive programs are relaxed, companies should use care in implementing such programs so that they do not discourage employees from reporting legitimate safety issues. Before implementing any kind of safety incentive program, a company should have a comprehensive safety program in place that creates a culture of safety.  A safety incentive program is just one small piece of that comprehensive program.

The new guidance does not solve all concerns, as its use of "reasonable" as the benchmark is somewhat vague, and a future administration can change the guidance quite easily as the regulation itself is still in place.  In any event, employers currently can be much more confident in implementing workplace safety incentive programs and post-accident drug testing.

OSHA LACKS PROBABLE CAUSE TO CONDUCT BROAD SAFETY INSPECTIONS

In a October 9, 2018 decision by the Eleventh Circuit Court of Appeals, a district court ruling has been affirmed quashing an inspection warrant that OSHA had sought to expand a limited incident inspection to a "wall-to-wall" inspection covering every facet of the employer's facility.  USA v. Mar-Jac Poultry, Inc.  This case was handled by the Wimberly & Lawson firm headquartered in Atlanta and sets important limitations on governmental rights to search an employer's premises. 

The situation arose when an employee at a Georgia poultry processing facility was injured while working on an electrical panel box using an uninsulated screwdriver.  The employer duly reported the incident to OSHA as required by law, and when OSHA inspectors arrived, they announced their intent to inspect the entire facility.  The employer through counsel contended that the inspection should be confined to the area where the accident occurred and denied that OSHA had sufficient probable cause to expand their inspection. 

OSHA obtained a warrant, but the firm was able to quash the warrant for a lack of probable cause.  A federal judge granted the motion, and on appeal OSHA abandoned one of its arguments, that the expanded inspection was justified because it was part of a special emphasis program for certain facilities.  Instead, OSHA's main argument was that the OSHA 300 logs, upon which covered employers are required to list serious work-related injuries and illnesses, satisfied its burden to show that it had probable cause to believe that OSHA standards were being violated.  The federal appeals court rejected OSHA's argument, finding that the OSHA 300 log was not a substitute for reasonable cause to believe a statute had been violated.

Thus, a Fourth Amendment provision that "no warrant shall issue but upon probable cause. . ." is an important protection, including a protection for employers against government over-reach.


Wimberly, Lawson, Steckel, Schneider & Stine

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