On Thursday, October 23, 2008, the Department of Homeland Security (DHS) issued a supplemental final rule to the department’s No-Match Rule that became effective in August 2007.  The proposed rule was initially published March 26, 2008, and the comment period closed April 25, 2008.  The supplemental final rule clarifies an employer’s responsibilities to resolve discrepancies identified in no-match letters issued by the Social Security Administration (SSA).

The No-Match Rule details steps employers may take when they receive a no-match letter from the SSA.  SSA informs employers by letter when specific employees’ names and corresponding Social Security numbers provided on the employers’ Form W-2 wage reports do not match SSA’s records.  These no-match letters may be used as evidence of an employer’s constructive knowledge that specific employees may be unauthorized workers. 

An employer that follows the safe harbor procedures detailed in the No-Match Rule in good faith will be considered to have acted reasonably, and the U.S. Immigration and Customs enforcement will not use the employer’s receipt of a no-match letter as evidence that the employer had constructive knowledge that it violated the employment provisions of the Immigration and Naturalization Act (INA) by knowingly employing unauthorized workers.

The supplemental rule is intended to address concerns raised by Judge Charles Breyer (United States District Court of the Northern District of California) when he preliminarily enjoined implementation of the No-Match Rule in October 2007.  In the supplemental proposed rulemaking, DHS reviewed past government communications about SSA no-match letters to clarify the history of the Department’s policy on the significance of those letters, and supplied additional “reasoned analysis” in support of the policy set forth in the rule.  DHS also clarified that the authority to interpret and enforce the anti- discrimination provisions of the INA rests with the Department of Justice, and provided an initial regulatory flexibility analysis, including a small entities analysis.

The supplemental proposed rule required employers seeking safe harbor to “promptly” notify affected employees identified in a no-match letter of the employee’s need to resolve a no-match.  In the supplemental rulemaking, DHS clarified that ”promptly” meant within five days of the employer being unable to resolve a no-match through internal investigation.  The supplemental rule also clarified that employers are not liable on a constructive knowledge theory for failing to follow safe harbor procedures when employees hired prior to November 6, 1986 are identified in a no-match letter.  The supplemental rule recognized that the INA included a grandfather clause that specifically stated that the Act did not apply to workers hired before its enactment.  Thus, the no-match rule does not apply to any workers employed before 1986 that may be identified in a SSA no-match letter.

After receiving nearly 3,000 comments on the proposed rule, DHS made adjustments to the cost calculations in the Initial Regulatory Flexibility Analysis and prepared a Final Regulatory Flexibility Analysis, finalized the additional legal analysis set out in the supplemental notice of proposed rulemaking, and determined that the rule should issue without change.

OSHA has announced a National Crane Safety Initiative to address safety hazards during crane operations. This initiative coincides with OSHA’s proposed rule on Cranes and Derricks in Construction. 

The initiative plans to increase and hazard awareness and provide information for how to avoid crane hazards. Furthermore, OSHA will launch a National Emphasis Program that increases the number of targeted inspections of construction worksites to identify crane hazards and ensure compliance with workplace crane safety requirements.

On October 20, 2008, OSHA published a Request for Information on permitting the use of a Supplier’s Declaration of Conformity (”SDoC”) as an alternative to the National Recognized Testing Laboratories (”NRTLs”) product-approval process. NRTLs are OSHA-approved third-party laboratories that perform safety testing and certification of electrical and other products. An SDoC is a written statement from an equipment manufacturer or supplier that a product meets or conforms to a specified standard or requirement. 

The SDoC is a currently accepted practice in the European Union. The European Commission (”EC”) proposed that OSHA adopt the SDoC because the NRTL system “imposes unnecessary additional costs and market-entry barriers on exporters of these goods.” In addition, the EC conducted a risk-assessment of the SDoC and found that “risks [posed by non-compliant products] are at a level that they can be satisfactorily managed.”

OSHA believes that the EC has failed to support this conclusion with evidence to ensure that the SDoC would satisfy the standard-setting requirements of the Occupational Safety and Health Act. Therefore, OSHA has requested information and comments regarding potential risks associated with the SDoC. In all, OSHA has issued thirty-eight specific requests for information regarding the EC’s proposal on the following topics:

• Product safety in an SDoC system
• Product risk and specifications
• Administration of an SDoC system
• Costs of an SDoC system
• Enforcement of an SDoC system
• Effects on trade
• Implementation suggestions by certain industries

OSHA will examine all responses received and determine whether to initiate a rulemaking or to take any other actions with respect to the SDoC. 

OSHA has also asked for public comments in connection with this proposed standard. The comment period will remain open until January 20, 2009. Comments may be submitted in three ways:  1) post the comments electronically through the Federal eRulemaking Portal at http://www.regulations.gov/, 2) send three copies to the OSHA Docket Office, Room N-2625, U.S. Department of Labor, 200 Constitution Avenue, N.W., Washington, D.C., 20210, or 3) fax the comments to 202-693-1648. Comments must include the Agency name and Docket Number for this rulemaking:  OSHA-2008-0032.

On October 16, 2008, President Bush signed the Federal Railroad Safety Improvement Act (H.R. 2095) into law.  The law increases rail employee training standards and modifies hours of service requirements.  For example, the Act enhances various hours-of-service requirements to address fatigue among train and signal employees, who are currently forbidden from being required to be on duty more than 12 consecutive hours.  The Act provides that all train and signal employees must be provided at least 10 consecutive hours of uninterrupted rest following 12 hours on duty (although this requirement would be suspended three years for passenger train employees during an FRA study of the issue). 

The Act also prohibits railroads from interfering with or delaying medical treatment of injured workers and forbids disciplining workers for requesting treatment.  It also mandates the implementation of a positive train control system by Class I railroads and intercity passenger and commuter railroads by the end of 2015.  A positive train control system would allow for automatic control and stopping of locomotives in the event of a missed signal, providing a backup safety system in the event of a human error.

The House passed the bill by voice vote on September 24, 2008 and the Senate passed the legislation by a vote of 74-24 on October 1, 2008.

Core Provisions:  The Workplace Religious Freedom Act (S. 3628) requires employers to reasonably accommodate their employees’ religious practices, such as time-off for religious observances or religious clothing/hairstyles. S. 3628 would amend Title VII of the Civil Rights Act of 1964 to require employers to make a “reasonable accommodation[s]” to religious observances and practices of employees when doing so does not impose an undue burden on the employers.

Status: On September 26, 2008, the bill was introduced by Sen. John Kerry (D-MA), and was referred to the Committee on Health, Education, Labor, and Pensions.

Core Provisions: This act would amend the Fair Labor Standards Act (FLSA) to strengthen enforcement and penalties of employers who misclassify employees as independent contractors. The bill would impose a maximum fine of $10,000 per violation for an employer who “repeatedly or willfully” failed to accurately classify a worker. Where an employer’s misclassification accompanied violations under the FLSA’s maximum hours or minimum wage requirements, a worker could recover double his or her liquidated damages.

An employer would also have to keep records of workers’ employment classification and notify those classified as “non-employees” in writing of (1) their classification, (2) that their rights to “wage, hour, and other labor protections” depend upon proper classification, and (3) directing them to the Department of Labor if they suspect they have been misclassified or need further information.

The legislation would require state unemployment insurance agencies to conduct auditing and investigative programs to detect employers that misclassify or fail to properly report compensation to workers with the effect of excluding employees from unemployment compensation coverage. The Secretary of Labor would also ensure that at least 25 percent of the Wage and Hour Division’s audits would focus on potential classification violations, especially in industries with frequent incidence of misclassifying workers.

Status: H.R. 6111 was introduced by Rep. Andrews (D-NJ) on May 21, 2008, and referred to the House Committees on Education and Labor and Ways and Means. S. 3648 was introduced by Sen. Kennedy (D-MA) on September 29, 2008 and was referred to the Committee on Health, Education, Labor, and Pensions.

Core Provisions:  The Protect Citizens and Residents from Unlawful Raids and Detention Act (S. 3594) is intended to establish minimum standards of due process and fair treatment for persons detained in immigration raids, including those in the workplace. The bill protects civil rights and detention standards for American citizens and permanent residents, as well as undocumented workers, who have been at times wrongfully detained by the officers of the Department of Homeland Security’s (”DHS”) Immigration and Customs Enforcement agency (”ICE”).Under the bill, ICE officers would be required to read detained individuals Miranda rights prior to questioning (right to counsel, right to remain silent, and right to avoid self-incrimination). Detained individuals would be provided a list of free and low-cost legal providers and, when held for 48 hours or more, would receive custody determinations before an immigration judge within 72 hours of the raid. S. 3594 also places geographical limitations on the transfer detainees to distant detention centers.

S. 3594 requires relevant agencies to take steps to ensure that immigration raids do not interfere with ongoing labor disputes. For raids affecting 50 or more people, the bill requires ICE to screen affected individuals to determine whether they are citizens or legal residents rather than undocumented workers. It also requires ICE to medically screen detained workers. The bill requires DHS to make annual reports to Congress on workplace enforcement and establishes an ICE ombudsperson to inspect detention facilities, report problems, and propose improvements.

Status:  On September 25, 2008, the bill was introduced by Sen. Robert Menendez (D-NJ), with Sen. Edward Kennedy (D-MA) as a co-sponsor.

On October 7, 2008, the Employee Benefits Security Administration (EBSA) released two final rules related to the selection of annuity providers.

The first rule limits the application of the “safest available” standard of Interpretive Bulletin 95-1 to defined benefit plans. Bulletin 95-1 states that plan fiduciaries must attempt to obtain the safest annuity available, unless it would be in the best interest of the participants and beneficiaries to do otherwise.  The Bulletin initially applied equally to both defined benefit plans and defined contribution plans. The final rule limits the scope of the bulletin to only defined benefit plans. 

The second rule establishes a safe harbor for the selection of annuity providers for benefit distributions from individual account plans. The proposed rule stated that fiduciaries should engage in an objective, thorough, and analytical search when identifying annuity providers, while avoiding self-dealing, conflicts of interest, or other improper influence.  The final rule clarified the proposed rule by noting (a) that the regulation does not establish a minimum requirement for satisfying the responsibilities of selecting an annuity provider; and (b) an independent expert is not required in all cases.

On October 9, 2008, OSHA published an 1,100-plus-page proposed rule to protect employees from the hazards associated with hoisting equipment, including cranes and derricks, used in construction activities.  OSHA estimates that 89 crane-related fatalities occur per year in construction work. The leading causes of crane-related fatalities include electrocution, crushing during assembly/disassembly, failure of a boom or cable, tip-over, falls, and being struck by the load or counterweight.  The proposed rule addresses these major causes of fatalities.

Under the proposed rule, which would modify 29 C.F.R. Part 1926, employers must first determine if the ground is sufficient to support the anticipated weight of the hoisting equipment and associated loads.  Next, the employer must assess hazards within the work zone that would affect the operation of the equipment, such as power lines and personnel.  Finally, the employer must ensure that the equipment is in safe operating condition by both inspections and employees in the work zone who are trained to recognize hazards associated with the use of the equipment. 

The proposed rule also requires certification of crane operators through one of four options, including certification by (1) an accredited crane/derrick operator testing organization; (2) an employer’s own audited qualification program; (3) the U.S. military; or (4) a licensed government entity.

The proposal is the culmination of an effort begun in 1998 with an OSHA advisory committee.  In 2002, OSHA initiated negotiated rulemaking, a process by which a proposed rule is developed by a committee comprised of members who represent interests that will be significantly affected by the rule.  In July 2004, a 23-member federal Cranes and Derricks Negotiated Rulemaking Advisory Committee reached consensus on a draft document that formed the basis of the proposed rule, but it took another four years for a proposed rule to be issued.

Comments and requests for a public hearing should be sent to OSHA by December 8, 2008 through the federal e-Rulemaking portal at http://www.regulations.gov/ , using Docket ID OSHA-2007-0066. 

On October 3, 2008, by a 386-28 margin, the House passed legislation (H.R. 6867) to extend unemployment benefits by an additional seven weeks. The vote, the final vote before adjourning for the year, follows a related September 26 vote to pass similar legislation (H.R. 7110).

The vote marks the second time in recent weeks in which the House passed such an extension of benefits. On September 26, 2008, by a margin of 264-158, the House voted to extend unemployment insurance benefits as part of a larger stimulus package (H.R. 7110).

The bill would provide jobless workers who have exhausted their benefits with seven more weeks of benefits, with additional 13-week extensions to workers in the 20 states (and the District of Columbia) with unemployment rates above 6 percent. The bill is intended to provide benefits to the nearly 800,000 jobless workers whose benefits were set to expire at the end of October, which is expected to rise to as many as 1.1 million workers by the end of the year. The bill provides roughly $6 billion for unemployment benefits.

The House vote follows the Senate’s failure to take up companion legislation on October 2, due to the objections of Senate Republican leadership. H.R. 6867 now moves to the Senate, which is in recess until November 17.