On June 22, OSHA published a proposed rule in the Federal Register that would significantly revise the list of industries required to record workplace injuries and illnesses. OSHA regulations partially exempt certain industries from the obligation to maintain such records because those industries have relatively low rates of occupational injuries and illnesses. The industries are only partially exempt, because employers in these industries still must respond to OSHA or Bureau of Labor Statistics annual occupational injury and illness surveys on request. See 29 C.F.R. §§ 1904.41 & 1904.42

The list of partially exempt industries in the current regulations is based on the Standard Industrial Classification (SIC) system, which dates to the 1930s and is no longer used in government statistics.  The proposed rule would replace this list with one based on the newer North American Industry Classification System (NAICS).

Under the proposed rule, employers in 59 different industries would be required for the first time routinely to record illness and injury information. These industries include:  retail bakeries; car dealerships; hardware stores; liquor stores; property managers; theater and dance companies; museums; photography studios and labs; and video rental stores. In contrast, 72 industries that currently have to record this data would become partially exempt. The new exemption extends to:  boat dealers; book, newspaper, and periodical publishers; radio stations; television broadcasters; and wireless telecommunication carriers.

In addition, the proposed rule would make reportable all amputations and in-patient hospitalizations resulting from work-related incidents. Employers would be required to report all work-related fatalities and all work-related in-patient hospitalizations within eight hours, and all work-related amputations within 24 hours. Currently, employers are required to report within eight hours work-related incidents resulting in a fatality or that result in the in-patient hospitalizations of three or more employees. Employers need not report amputations resulting from work-related incidents at all if they do not require in-patient hospitalization.

OSHA estimates that the proposed rule would impose new recordkeeping requirements on 199,000 establishments, with a total of 5.3 million employees. The agency anticipates that those establishments, in turn, would record 173,000 injuries and illnesses per year. This impact would be offset, in part, by an estimated 119,000 establishments, with a total 4.0 million employees and an estimated 76,000 injuries and illnesses per year, that would no longer need to keep records.

Overall, OSHA estimates that the proposed rule would cost about $8.5 million, with costs of $50 to $100 for each affected establishment.

In a proposed rule to be published in the Federal Register today, June 22, 2011, the National Labor Relations Board would streamline and expedite its election procedures. Stating a desire to “remove unnecessary barriers to the fair and expeditious resolution of questions concerning representation,” the rule would move resolution of eligibility disputes to the post-election period, reduce the ability of parties to seek Board review in representation cases, shorten various existing filing deadlines, require employer disclosure of employee contact information, and allow the parties to make increased use of electronic filing. In setting forth these amendments, the Board’s Democratic-majority maintained that the regulations merely seek to reduce unnecessary litigation and undue delay - they would not require that representation elections be held within a specific number of days.

Brian E. Hayes, the NLRB’s lone Republican, expressed doubts that the majority was concerned about expediting the representation elections process. He disputed the claim that the process is too slow, and argued that the majority’s true aim was to aid unions in representation elections.

With the NLRB embroiled in a series of contentious partisan disputes, including the recent filing of union discrimination charges against Boeing, Inc. and legal challenges to state constitutional amendments outlawing the majority sign-up process, the reaction to the proposed rule was predictable. Union leaders praised it, noting that the reforms would bring faster, more transparent elections, while business interests and Republicans have characterized the proposed rule as a giveaway to labor.

Labor has long criticized the current representation election procedures, believing they allow employers to defeat union drives through delay and labor consultant-directed anti-union messaging. The shorter election periods would thus provide employers with a smaller target and would likely allow more representation drives to come to a vote. While unions win nearly two-thirds of representation elections coming to a vote, they fail in the majority of the representation drives they initiate. Employer opposition - primarily through coordinated messaging and education campaigns - leads roughly three in every 10 election drives to fizzle out prior to voting, either through union withdrawal or NLRB rejection of an election petition.

The NLRB will allow 60 days for written comments and will hold a public hearing on the proposed rule on July 18-19 in Washington, D.C.

Section 203 of the Labor-Management Reporting and Disclosure Act requires the disclosure of agreements with persons who work on behalf of employers to persuade employees to exercise or not exercise their rights to organize or collectively bargain, or to persuade employees as to how they should exercise such rights. See 29 U.S.C. § 433(b). However, the Act provides an exemption to this so-called “persuader” reporting requirement where the would-be persuader is merely “giving or agreeing to give advice” to an employer. See id. at § 433(c).

On June 21, 2011, the U.S. Department of Labor’s Office of Labor-Management Standards (”OLMS”) will publish a proposed rule in the Federal Register narrowing this  ”advice exemption” and thus expanding the Act’s reporting requirements. Historically, the advice exemption has been broadly interpreted, exempting persuader reporting when consultants or attorneys advising employers have no direct contact with employees. This includes situations where consultants or attorneys have prepared materials for use by the employer.

The OLMS’s proposed rule will reject the current interpretation of “advice” and expand the definition of reportable “persuader activities” to include “all actions, conduct, or communications, on behalf of an employer that . . . have a direct or indirect object to persuade employees concerning their rights to organize or bargain collectively.” The proposed rule will seek to limit the advice exemption to the “plain meaning” of “advice,” defined as “an oral or written recommendation regarding a decision or course of conduct.” Reporting will thus be required “in any case in which the agreement or arrangement, in whole or in part, calls for the consultant to engage in persuader activities, regardless of whether or not advice is given.”

The proposed regulation will also provide examples of reportable agreements or arrangements, including a labor consultant:

• Agreeing to plan or orchestrate an anti-union campaign through specific persuader activities;
• Engaging on behalf of the employer in any other actions, conduct, or communications designed to persuade employees;
• Engaging in any conduct, actions, or communications that utilize employer representatives to persuade employees, such as directing or coordinating the activities of employer representatives, or providing persuader material to them for dissemination; and
• Drafting or implementing policies for the employer that aim to directly or indirectly persuade employees.

Under the proposed rule, reporting would still not be required where a consultant or attorney enters into an arrangement exclusively to provide advice to an employer - as that term is narrowly construed by the proposed rule - such as counseling employer representatives on what they may lawfully say to employees, ensuring a client’s compliance with the law, or providing guidance on NLRB practice or precedent.

Core Provisions: On June 14, 2011, Rep. Lamar Smith (R-Texas) introduced the Legal Workforce Act (H.R. 2164), a bill amending the Immigration and Nationality Act to implement a fully electronic (”E-Verify”) worker verification system. The bill would make E-Verify mandatory for all employers, repealing the current paper-based I-9 system. Mandatory E-Verify participation would be phased in by the Act in six-month increments based on a business’s number of employees-e.g., within six months of enactment, businesses with more than 10,000 employees would be required to use E-Verify.  Businesses with 500-9,999 employees, 20 to 499 employees, and 1 to 19 employees would have 12, 18, or 24 months to comply, respectively. 

The bill also contains special provisions for agricultural employees, providing that employees performing “agricultural labor or services” are not subject to the bill’s E-Verify provisions until 36 months after the Act’s enactment. Furthermore, a seasonal agricultural employee will not be considered a “new hire” subject to verification if the individual returns to work for their previous employer. Finally, the bill contains a safe harbor provision for employers that act in good faith and also explicitly preempts any state laws mandating E-Verify use for employment eligibility purposes, although states and localities may condition business licenses on the requirement that employers comply with the federal E-Verify law in good faith.  

Status: Rep. Smith introduced H.R. 2164 with 13 co-sponsors on June 14, 2011. The Bill was referred to the House Committee on the Judiciary, the Committee on Education and the Workforce, and the Committee on Ways and Means on the same day.