Three new laws dealing with the workplace

Three new laws dealing with the workplace

While Mr. Trump is touting his buy American and hire American slogans three laws were signed into law by Mr. Trump that chip away at the protections American workers have. Before looking at these three laws, a quick note on the buy American hire American executive order from 4/18/17 – the order does not bring any new policies to the table as both the government buying American products and reforming the H1-B visa have already been done/proposed by Congress, http://www.nydailynews.com/amp/news/politics/trump-signs-buy-american-hire-american-executive-order-article-1.3070608.

1.H.J.Res 37Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That Congress disapproves the rule submitted by the Department of Defense, the General Services Administration, and the National Aeronautics and Space Administration relating to the Federal Acquisition Regulation (published at 81 Fed. Reg. 58562 (August 25, 2016)), and such rule shall have no force or effect” (https://www.congress.gov/bill/115th-congress/house-joint-resolution/37/text). This law was passed by a roll call vote: Senators Harris and Feinstein voted against it while Rep. Hunter was absent and thus recorded no vote.

The Federal Regulation that this law references (81 Fed. Reg. 58562) would have brought the Department of Defense, the General Services Administration and NASA’s acquisitions’ departments (aka purchasing departments) in line with then President Obama’s Executive Order 13673, Fair Pay and Safe Workplaces, “The E.O. [Executive Order] requires that prospective and existing contractors on covered contracts disclose decisions regarding violations of certain labor laws, and that contracting officers, in consultation with agency labor compliance advisors (ALCAs), a new position created by the E.O., consider the decisions, (including any mitigating factors and remedial measures), as part of the contracting officer’s decision to award or extend a contract. In addition, the E.O. creates new paycheck transparency protections, among other things, to ensure that workers on covered contracts are given the necessary information each pay period to verify the accuracy of what they are paid. Finally, the E.O. limits the use of predispute arbitration clauses in employment agreements on covered Federal contracts” (https://www.gpo.gov/fdsys/pkg/FR-2016-08-25/pdf/2016-19676.pdf)

2. J. Res 83:Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That Congress disapproves the rule submitted by the Department of Labor relating to “Clarification of Employer’s Continuing Obligation to Make and Maintain an Accurate Record of Each Recordable Injury and Illness” (published at 81 Fed. Reg. 91792 (December 19, 2016)), and such rule shall have no force or effect” (https://www.congress.gov/bill/115th-congress/house-joint-resolution/83/text). This law was passed by a roll call vote: Senators Harris and Feinstein voted against it while Rep. Hunter voted for it.

The Occupational Safety and Health Administration (OSHA), was created in 1970 under the Nixon administration and was, “dedicated to the basic proposition that no worker should have to choose between their life and their job…. [and] makes it clear that the right to a safe workplace is a basic human right” (https://www.osha.gov/Publications/all_about_OSHA.pdf). The mission statement of OHSA is to, “assure safe and healthful working conditions for working men and women by setting and enforcing standards and by providing training, outreach, education and assistance” (https://www.osha.gov/about.html). Some of the ways that OHSA has improved the health and safety of America’s workers is by creating a set of workers’ rights, establishing a system by which employees can file grievances, making laws that bar employers from retaliating, ensuring that whistleblowers are protected, providing trainings for employers and requiring employers to track specific work related injuries or illnesses (https://www.osha.gov/workers/index.html). It is this last provision that H.J. 83 took aim at.

Without delving into too much tedium, here are the details. OSHA requires that employers keep track of certain work related injuries or illness for 5 years following the injury or illness (https://ohsonline.com/articles/2015/07/29/osha-tackles-volks-ii-setback-in-recordkeeping-rulemaking.aspx) – the obvious point of this is that people know how many accidents occur, whether they are one-off events or are evidence of underlying issues, etc…. Some employers argued that if they never recorded the accident in the first place then they would not have to maintain the record for 5 years and they argued (in court) that therefore they were only in violation of one OHSA rule, namely the original rule to record an injury or illness. Needless to say OHSA disagreed and stated that since the law is to maintain the record for 5 years, the employers were in continuous not one-time violation: “The duty to record an injury or illness continues for as long as the employer must keep records of the recordable injury or illness; the duty does not expire just because the employer fails to create the necessary records when first required to do so” (https://www.gpo.gov/fdsys/pkg/FR-2016-12-19/pdf/2016-30410.pdf). The courts ruled in favor of the employer and thus OSHA under the Obama administration wrote a Federal Regulation (91792) that clarified that the need to maintain records is continuous and on-going. It is this Regulation that H. J. Res 83 nullifies meaning that a company can simply not record a work-related injury or illness and know they will only be in violation of one OHSA requirement.

3. H.J. Res 42:Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That Congress disapproves the rule submitted by the Department of Labor relating to “Federal-State Unemployment Compensation Program; Middle Class Tax Relief and Job Creation Act of 2012 Provision on Establishing Appropriate Occupations for Drug Testing of Unemployment Compensation Applicants” (published at 81 Fed. Reg. 50298 (August 1, 2016)), and such rule shall have no force or effect” (https://www.congress.gov/bill/115th-congress/house-joint-resolution/42/text). This law was passed by a roll call vote: Senators Harris and Feinstein voted against it while Rep. Hunter voted for it.

Just in case the theme is not clear enough, this law truly makes it abundantly clear that what this administration and this Congress care about is undoing the, per Bannon, “administrative state”. One condition of receiving unemployment benefits, which is distributed by the States, is that the person is actively looking for a job, this is the benefit that is extended to people who are in-between jobs and who have every intention to re-enter the labor force (to see CA’s requirements for obtaining unemployment: http://www.edd.ca.gov/Unemployment/Eligibility.htm). If someone is not wanting to re-enter the labor force and needs financial assistance, other programs provide (in theory) for that person. So it is not farfetched that the federal government would allow states to drug test unemployment recipients who are pursuing jobs in fields that routinely conduct drug tests and it also is not so farfetched that should the person test positive for drugs his/her unemployment could be withheld since by definition that person could not attain any of the jobs he/she is applying for. This logic is exactly what the Federal Regulation that this law undoes put forth, “The Employment and Training Administration (ETA) of the U.S. Department of Labor (Department) is issuing this final rule to establish, for State Unemployment Compensation (UC) program purposes, occupations that regularly conduct drug testing. These regulations implement the Middle Class Tax Relief and Job Creation Act of 2012 (the Act) amendments to the Social Security Act (SSA), permitting States to enact legislation that would allow State UC agencies to conduct drug testing on UC applicants for whom suitable work (as defined under the State law) is available only in an occupation that regularly conducts drug testing (as determined under regulations issued by the Secretary of Labor (Secretary)). States may deny UC to an applicant who tests positive for drug use under these circumstances. The Secretary is required under the SSA to issue regulations determining those occupations that regularly conduct drug testing” (https://www.gpo.gov/fdsys/pkg/FR-2016-08-01/pdf/2016-17738.pdf).

As was noted with the laws related to the Federal Regulations about education – these laws chips away at the roll the Federal Government has in American’s lives, this time in the arena of work.

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