On May 26, 2011, OSHA announced a forthcoming final rule that will streamline and simplify OSHA standards and reduce employer burdens.  The rule will impose no new requirements, and thus employers will need to take no steps to comply. 

This rule updates OSHA regulations in keeping with the goals of President Obama’s Executive Order 13563, “Improving Regulation and Regulatory Review.” The executive order was issued on January 18th with the stated goal of simplifying standards and reducing unnecessary burdens. Assistant Secretary of Labor for OSHA David Michaels stated that “OSHA estimates that the final rule, without reducing employee protection, will result in an annual cost savings to employers exceeding $43 million and significant reductions in paperwork burden hours.” The White House’s Office of Information and Regulatory Affairs noted that the new rule will remove “over 1.9 million hours of redundant reporting burdens on employers.”   

Specifically, the new rule will make several changes to OSHA’s existing respiratory protection standard, including aligning air cylinder testing requirements for self-contained breathing apparatuses with the U.S. Department of Transportation’s regulations, clarifying that aftermarket cylinders meet National Institute for Occupational Safety and Health (”NIOSH”) quality assurance requirements, and clarifying that the provisions of Appendix D, which contains information for employees using respirators when not required by the standard, are mandatory if the employee chooses to use a respirator.

The new rule will also update the definition of “potable water” to be consistent with the current EPA definition instead of the outdated Public Health Service Corps definition, remove the outdated requirement that hand dryers use warm air, and remove two medical records requirements from the commercial diving standard. The slings standard will also be updated and streamlined to require that employers use only slings marked with the manufacturers’ loading information. Finally, the new rule will delete a number of requirements that employers transmit exposure and medical records to NIOSH, since NIOSH had concluded that these records do not serve a useful research purpose. 

The final rule will be published soon in the Federal Register.

Core Provisions:  On May 12, 2011, Sen. Franken (D-MN) re-introduced legislation which would amend the Federal Arbitration Act (FAA) by prohibiting mandatory predispute arbitration agreements. Rep. Johnson (D-GA) introduced identical legislation in the House. The proposed legislation would invalidate and make unenforceable predispute arbitration clauses in civil rights, consumer, and employment disputes. The legislation would not apply to any arbitration provision in a collective bargaining agreement between an employer and a labor organization or between labor organizations.

The proposed legislation follows the Supreme Court’s April 27, 2011 decision in AT&T Mobility LLC v. Concepcion, which held that the FAA preempted a California law that made waivers of classwide arbitration in consumer contracts unconscionable and unenforceable. 

Similar legislation was introduced in the 111^th Congress in both the Senate (S. 931) and the House (H.R. 1020), but did not make it out of committee.

Status:  Sen. Franken introduced the bill (S. 987) with 12 co-sponsors on May 12, 2011.  It was referred to the Senate Committee on the Judiciary on the same day.  Rep. Johnson introduced the same bill (H.R. 1873) with 62 co-sponsors on the same day.  The bill was referred to the House Committee on the Judiciary on the same day.

On May 9th, the DOL announced the launch of its first application for smartphones, a timesheet to help employees independently track the hours they work and determine the wages they are owed. DOL hailed the development of this technology as “significant because, instead of relying on their employers’ records, workers now can keep their own records.” The application is available in both English and Spanish. The DOL also provides a printable work hours calendar in English and Spanish for those workers who do not have smartphones. 

Both the smartphone application and the printable calendar will allow users to track regular work hours, break time and any overtime hours for one or more employers. The application also will allow users to add comments to the information; view a summary of their work hours in a daily, weekly, and monthly format, and e-mail the summary of work hours and gross pay as an attachment. Currently, the app is compatible with only the iPhone and iPod Touch. The DOL intends to explore expanding the program to other smartphones such as the Android and the Blackberry, as well adding pay features that would track tips, commissions, bonuses, deductions, holiday pay, pay for weekends, shift differentials, and pay for regular days of rest.

On May 6, 2011, the NLRB filed suit against Arizona in federal court to overturn its recently-passed state constitutional amendment banning the use of the card-check process in union elections, asserting that the amendment creates an “actual conflict” with federal labor law and is therefore preempted. (NLRB v. Arizona, D. Ariz., case number not available, complaint filed 5/6/11).

In November 2010, voters in Arizona, South Dakota, South Carolina, and Utah passed constitutional amendments requiring secret ballot elections in all union elections. 

Section 7 of the NLRA permits workers to choose a union through two pathways: NLRB-conducted secret-ballot elections and voluntary recognition after a showing of majority support through the use of the card-check or majority sign-up processes. The state constitutional amendments would eliminate the latter pathway to union certification, preventing employers from entering into neutrality agreements with unions utilizing the card-check or majority sign-up processes and requiring NLRB-conducted secret-ballot elections in all circumstances.  

The NLRB initially threatened legal action against Arizona, South Carolina, South Dakota, and Utah in January 2011. In January 2011 letters to the attorneys general of those four states, NLRB Acting General Counsel Lafe Solomon warned that the state amendments would pressure employers who previously agreed to voluntary recognition agreements to withdraw recognition from labor organizations representing their work forces and could lead to unnecessary litigation by workers challenging unions with majority support. In response, the state attorneys general asserted the legality of those amendments and pledged to defend them.  The NLRB’s May 6 news release announcing the suit against Arizona stated that the complaint against South Dakota will be filed “in the coming weeks.”

The state amendments are an outgrowth of the defeat of the Democratic-sponsored Employee Free Choice Act in the 111th Congress, which would have permitted the use of the card-check or majority sign-up processes outside the voluntary recognition context.  This year, Senate Republicans have introduced the Secret Ballot Protection Act, a federal bill mirroring the state constitutional amendments that would ban the card-check/voluntary recognition pathway and require secret ballot elections in all circumstances. With Democrats controlling the Senate, the legislation is unlikely to have majority support in that body, let alone the 60 votes needed for cloture.

NLRB Acting General Counsel Solomon was nominated by President Obama earlier this year to a four-year term as General Counsel on a permanent basis. His nomination is currently pending in the Senate.

On April 20, 2011, NLRB Acting General Counsel Lafe E. Solomon issued a complaint against the Boeing Company for its transfer of aircraft production jobs from the state of Washington to South Carolina in violation of Sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act (”NLRA”). The complaint follows an unfair labor practice complaint brought by IAM in March 2010 and asserts that by opening a new production line in North Charleston, SC rather than the Puget Sound area of Washington State, Boeing is engaging in anti-union discrimination with regard to hiring and employment and unlawfully interfering with, restraining or coercing its employees in their exercise of their NLRA rights.

In conducting an investigation and bringing the complaint, the NLRB referenced numerous statements made in the press by Boeing officials concerning the desire to set up the production line in a non-union setting. In particular, one high-level Boeing official was reported to have told the Seattle Times that “[t]he overriding factor (in locating the work in South Carolina) was not the business climate. And it was not the wages we’re paying today. It was that we cannot afford to have a work stoppage, you know, every three years.” Boeing production lines in the Puget Sound, WA area have been plagued by periodic strikes in the past.

In a statement issued by its Executive Vice President and General Counsel J. Michael Luttig, a former federal judge, Boeing emphatically contested the complaint, arguing that establishing a new production line in South Carolina did not represent a removal or transfer of work from Puget Sound or otherwise adversely affect any union employees. Boeing also asserted that the NLRB mischaracterized the statements of its officials, and that the company considered only permissible factors in locating the production line in South Carolina.

The filing of the NLRB complaint brought condemnation from Senate Republicans, who contended that the action improperly interfered with the ability of businesses to operate in right-to-work states and would force companies to instead move jobs overseas. The NLRB complaint prompted Sen. Lamar Alexander (R-TN) and South Carolina’s two Republican Senators, Sen. Jim DeMint and Sen. Lindsey Graham, to announce that they would soon unveil the Right to Work Protection Act, which would bar the NLRB or union contracts from overriding right-to-work laws and halt NLRB actions such as the Boeing complaint. The bill, which is unlikely to pass the Democratic-controlled Senate, would prohibit federal government from engaging in enforcement actions against companies electing to relocate to right-to-work states or from disadvantaging work located in right-to-work states when awarding federal government contracts.

The complaint also brought condemnation from the Republican state attorneys general of nine right-to-work states, who called on the NLRB to drop the complaint: Alabama, Arizona, Florida, Georgia, Nebraska, Oklahoma, South Carolina, Texas, and Virginia.

Both parties will be able to present evidence and arguments concerning the NLRB complaint in a June 14, 2011 hearing in Seattle, WA before an NLRB administrative law judge.

NLRB Acting General Counsel Solomon was nominated by President Obama earlier this year to a four-year term as General Counsel on a permanent basis. His nomination is currently pending in the Senate.