Originally posted Tuesday, 25 January 2011

Written by Owners Perspective

Of the many subjects construction Owners must keep apprised of, two of the most significant are changes in OSHA regulations and legislation related to immigration. Success in construction depends greatly on adherence to the ever-evolving laws and regulations governing these domains.

OSHA Regulations

OSHA is continually updating its policies and enforcement strategies in order to minimize workplace injuries, and, as a result, the way the construction industry observes these policies must be continually revised in order to remain compliant. During the last year, there have been many new developments affecting the construction industry.

OSHA has lately increased enforcement of pre-existing laws and regulations. From October 2009 to September 2010, OSHA ticketed 164 employers whose violations warranted fines of $100,000 or more. Additionally, OSHA made more frequent use of its “egregious citation policy” during that time. This policy targets companies who show blatant non-adherence to safety codes and calls for greater fines per violation. This has been the most rigorous period of OSHA’s enforcement in the last decade.

On September 29, 2010, OSHA implemented a new measure in its 22-month effort to step up enforcement of the OSH Act. Companies whose inspections revealed infractions prior to October 1, 2010 are only subject to the previous policy, but effective October 1, 2010, all OSHA offices were required to measure companies against a new penalty policy. The new policy comes as a result of criticism regarding the apparent subjectivity of the old criteria and, among other provisions, extends the timeframe that an employer’s history is considered in determining penalty from three to five years. That is, employers with no repeat offenses within five years (instead of three) are subject to softer penalties than those with repeat offenses. High-gravity, serious violations of standards outlined in OSHA’s new Severe Violators Enforcement Program (SVEP) will no longer need to be grouped or combined but can be cited as separate violations with individual penalties. The new policy also grants the area director authority to limit adjustments for good faith, history, or size of the employer if he or she considers it necessary to achieve the “appropriate deterrent effect.”

Until November 12 of this year, OSHA was accepting nominations of experienced members of the construction industry to serve on the Advisory Committee on Construction Safety and Health (ACCSH). The committee advises the Department of Labor regarding issues that are important to the construction industry, such as women in construction, recordkeeping, crane safety, and safety and health resources for Latino construction workers. The committee has a 40-year history with OSHA and will continue to work to improve safety standards for the construction industry.

A new rule regarding the use of cranes and derricks in construction was finally published in the Federal Register on August 9. The rule has been in the works since it was introduced in 1998 by the ACCSH. It updates the standards of cranes and derricks in light of technological advances and mounting injuries since the last rule was established in 1971. The effective date of the new law is 90 days after its publication, though some provisions of the law allow more time for companies to enact these regulations within themselves. New operations licensing requirements and more rigorous equipment standards are among the many additions. This revision is expected to prevent 22 fatalities and 175 non-fatal injuries each year. The full text of the new regulation is viewable at http://www.osha.gov/FedReg_osha_pdf/FED20100809.pdf.

Earlier this year, the Northern New Jersey Action Summit for Latino/Immigrant Worker Safety and Health was held to discuss bettering working conditions for immigrants. Among the improvements suggested, the importance of conversing with immigrant employees in a common language was stressed. This provision was included in the cranes and derricks law recently passed and will likely be seen in upcoming legislation.

Since October of 2009, OSHA has been conducting a Recordkeeping National Emphasis Program (NEP). The program measures employers against specific guidelines to determine if they should be inspected for adherence to recordkeeping regulations. Recently, OSHA has adjusted the criteria against which employers are measured, subjecting more/different companies to inspection. As of October 1, 2010, more than half of the inspections have revealed recordkeeping violations. OSHA asserts that proper recordkeeping of illness and injury is essential to maintaining a safe workplace.

More information regarding new OSHA regulations is available at http://osha.gov.

Immigration

According to the Associated General Contractors (AGC), more than seven million people work in the construction industry today. The industry is facing a shortage of workers and will require an estimated 180,000 additional workers annually for the next 10 years. Many of these will necessarily be immigrants, so the importance of immigration legislation to the construction industry is self-evident.

Comprehensive immigration reform bills in various forms have circulated in the halls of congress for years, and the issue is a perennial hot-topic in the media. For the moment, though, there is nothing to suggest that federal immigration reform is likely in the foreseeable future. In the absence of federal action, most state legislatures have taken it upon themselves to address the issue. In the first six months of 2010, every state in regular session considered laws related to immigrants or immigration. State legislators introduced 1,374 bills and resolutions in 46 states relating to immigrants and refugees. As of June 30, 2010, 44 state legislatures passed 191 laws and adopted 128 resolutions. By way of comparison, 2006 saw 570 bills introduced, with 84 laws enacted and 12 resolutions adopted.

Of these, Arizona’s immigration enforcement laws (SB.1070 and HB.2162) have received the most attention. Key provisions of this bill specify that law enforcement must attempt to determine the immigration status of a person involved in a lawful stop and must detain or arrest the person when the officer reasonably suspects the person is an illegal immigrant, that state residents may sue state and local agencies for noncompliance, and that failure to carry an alien registration document is now a state violation. It also requires all businesses in the state to use E-Verify to verify the employment eligibility of newly hired employees. The law stipulates that any company knowingly or intentionally hiring an illegal alien could face suspension of its business license for a first offense and revocation of the license for a subsequent offense.

As of June 30, bills similar to Arizona’s had been introduced in South Carolina, Pennsylvania, Minnesota, Rhode Island, and Michigan. Of course, the provisions of each bill are unique, and not all are as far-reaching as the Arizona bill. But because so many states are enacting immigration legislation that affects employers, it is increasingly important for employers to be familiar with the legislation that applies in the states where they do business. In addition, some counties or municipalities have enacted immigration legislation that may have a bearing on how employers operate.

Some, including the AGC of America, see recent legislative developments as focusing excessively on employee verification and employer sanctions, rather than addressing the underlying and systemic problems causing illegal immigration. Some of the measures frequently discussed in today’s immigration reform debate include more stringent penalties for companies that hire illegal immigrants, a “guest worker” program to allow immigrants temporary work visas, more effective employee verification programs, revision of safety laws to deal specifically with immigrant workers, and the native-language requirements aforementioned and already enacted.

For some idea how the Obama administration might approach immigration reform in the future, it may be instructive to look at a speech President Obama delivered earlier this year at the American University School for International Service. In it, he noted the clear division of opinions within our country, especially in light of current developments like Arizona’s immigration law. He stressed the importance of moderation and pragmatism in policy-making and noted the impracticality of such extreme measures as a zero-tolerance deportation-based approach. Strengthening the borders and enforcement of penalties for those who violate immigration laws, as well as a reevaluation of the means by which immigrants can obtain legal status were among the measures he particularly emphasized. He noted specifically the importance and necessity of immigrant labor to industries such as construction and agriculture. The full transcript is available at http://www.whitehouse.gov/the-press-office/remarks-president-comprehensive-immigration-reform.