California immigration law may create challenges for employers
A new California law aimed at curbing immigration enforcement took effect Jan. 1 and could cause problems for employers.
Signed into law Oct. 5, 2017, A.B. 450 limits the circumstances under which employers can respond to requests for documents and physical access to nonpublic areas in connection with immigration enforcement. Additionally, the law requires notice to employees and their labor unions if the government will audit an employer's I-9 employment eligibility verification forms, and employers may not recheck a worker's employment eligibility unless required to do so by federal law.
Critics say real-world implementation of the law could be an issue and potentially burdensome for employers. Others say it's difficult to predict the effects of the law, but employers will have to understand their rights under the law and train staff involved with immigration compliance.
The law comes at a time when U.S. Immigration and Customs Enforcement (ICE) is planning to step up enforcement.
"ICE's worksite enforcement strategy addresses both employers who knowingly hire unauthorized workers and the workers themselves," says Danielle Bennett, ICE spokeswoman. "While we focus on the criminal prosecution of employers who knowingly hire illegal workers, under the current administration's enforcement priorities, workers encountered during these investigations who are unauthorized to remain in the United States are also subject to administrative arrest and removal from the country."
As the California law restricts immigration enforcement agents from entering nonpublic areas of an employer's property or accessing personnel records without a judicial warrant, the question is raised regarding who is considered an "immigration enforcement agent"—whether it is only ICE agents or also other federal immigration agents.
Additionally, there are concerns requiring notice of an impending I-9 audit could increase workplace tension or cause workers to flee. Making sure employees receive the information through the proper channels and being able to answer their questions could be a challenge for employers, says Hiba Anver of the Erickson Immigration Group, Arlington, Va.
Angelo Paparelli of Seyfarth Shaw, Los Angeles, says the part of the law that states employers may not recheck a worker's employment eligibility unless required by federal law could make it more difficult for employers to decide whether to conduct internal audits of their I-9 forms; internal audits can be evidence of good faith that can lower a fine if ICE finds violations.
Jeffrey Kikuta of Fragomen, Del Rey, Bernsen & Loewy, Los Angeles, says employers should focus on their I-9 forms being accurate, and the issue of deciding whether it is worth the risk to conduct an internal audit may need to be addressed case by case.
DOL expected to appeal injunction of overtime salary threshold
The Department of Labor (DOL) is expected to file an appeal of a district court judge's permanent injunction that stalled an updated Fair Labor Standards Act (FLSA) overtime salary threshold.
Although DOL dropped its defense of the rule at the appellate level, it asked the court to approve the concept of a salary threshold—the lower court questioned DOL's authority regarding this issue in its injunction.
During the Obama administration, DOL attempted to more than double the salary threshold for workers who are eligible for overtime pay under the FLSA from $455 per week ($23,660 per year) to $913 per week ($47,476 per year). The proposed rule also would have automatically updated the threshold every three years and would have been tied to the 40th percentile of full-time salaried workers in the lowest-wage region of the U.S.
The injunction was viewed as a significant win for the employer community because DOL's proposed rule was extremely unpopular among businesses. But during a comment period on a potential replacement rule, employer groups largely claimed an update was needed—just not to the extent the Obama-era regulation proposed. For example, the Society for Human Resource Management showed support for a $32,000 salary threshold.
DOL's appeal would allow it to move forward with a new rule, which likely would involve a lower salary threshold, possibly in the $32,000 to $35,000 range.
Denver voters approve green roof initiative
On Nov. 8, voters approved a new sustainability plan for downtown Denver that requires new high-rises to have a portion of their roofs covered by gardens or solar panels.
The initiative passed by a 52.5 to 47.5 vote despite a $250,000 advertising campaign by several Denver businesses that oppose the plan.
The Denver plan resembles those already in place in Chicago, San Francisco and Toronto. Nonprofit organizations can apply for an exemption.
For a year, Brandon Reitheimer, campaign manager for the Denver Green Roof Initiative, and 60 volunteers pushed the plan to require all new Denver buildings larger than 25,000 square feet to have roof gardens and/or solar panels, with a goal of reducing air pollution and energy costs.
"We were just all grassroots," Reitheimer told denver.cbslocal.com. "Small money donors. People who really care about the environment and care about the city."
However, developers and others—including Denver Mayor Michael Hancock—have concerns about the plan.
"We are concerned that it may mean additional costs to these projects that we are laying out in terms of the bond that we did not have programmed in the dollars," Hancock says.
Reitheimer says the green roof plan includes a small upfront cost for builders, but the roofs last five times as long and will pay dividends in the future.
"You're looking at a return on investment in about six and a half years," he says.
Andrea Burns with Denver Community Planning and Development is optimistic the initiative—also known as Ordinance 300—will not derail several city projects.
"It will be a little bit of work in the next few weeks, but green roofs are already possible in Denver," Burns says. "It's just a matter of making those agreements that are part of Ordinance 300 work with our system now. We're going to make this work for the people of Denver."
The city council can repeal or revise the ordinance in six months with a two-thirds vote.
Illinois House fails to ban right-to-work zones
For a second time, the Illinois House failed to ban municipal restrictions on collective bargaining. The Democratic-controlled House needed one more vote to override Republican Gov. Bruce Rauner's veto of S.B. 1905, the "Collective Bargaining Freedom Act," which would have prohibited the creation of local right-to-work zones.
On Nov. 7, 2017, the House voted 70-39 in favor of the override, but 71 votes were needed to reverse Rauner's veto; a similar vote failed in the House Oct. 25, 2017. The Senate successfully voted to override the veto Oct. 24, 2017.
S.B. 1905 sought to bar local governments from enacting and enforcing ordinances that limit collective bargaining rights. It would have established penalties for units of local government and elected officials violating its requirements; authorized a private right of action for aggrieved parties to sue municipalities; and permitted criminal penalties for municipal officers and elected officials, classifying each violation as a Class A misdemeanor.
Local right-to-work zones was a priority early in Rauner's administration, and he called the House's failure a "victory for the people," saying the opportunity to restrict collective bargaining at the local level gives Illinois the tools to compete for jobs against neighboring right-to-work states Indiana, Kentucky, Missouri and Wisconsin.
During their second campaign to override the veto, Democrats added compromise language in an attempt to garner Republican votes but failed to get the votes needed. Also, Rep. Scott Drury (D.-Ill.), who voted to override the veto in October, could not be at the capital for the most recent vote.
Andrew Nelms, state director for the free-market advocacy group Americans for Prosperity, applauded the vote.
"Local governments across Illinois should be free to improve their economic competitiveness and give employees a choice if they want to join and pay a union," he says.
Terrence J. Hancock, president of Teamsters Joint Council 25, said in a statement that "right-to-work zones serve one purpose—to destroy unions and rob workers of their collective bargaining rights. Teamsters and all working men and women need to stand together to oppose these dangerous legislative efforts."
OSHA extends crane operator certification deadline
The Occupational Safety and Health Administration (OSHA) published a final rule Nov. 9, 2017, delaying its deadline for crane operator certification by one year until Nov. 10, 2018. OSHA also extended its requirement that employers ensure crane operators are competent to operate a crane safely for the same one-year period. The rule took immediate effect.
The notice follows the publication of a proposed rule in August 2017 in which OSHA announced its plans for the postponement. OSHA believes an additional year will be sufficient to address two issues that have concerned the industry since the original proposed rule was published in 2010: whether crane operators need to be certified by crane type and capacity or just by type and whether certification alone is sufficient to qualify an operator to operate a crane.
OSHA has not disclosed the exact language it will use to propose solutions for the issues, but the agency has reaffirmed it likely will remove the capacity component of crane certification. Regarding the second issue, OSHA stated in its most recent rulemaking the agency currently is "not prepared to make a determination whether certification alone is insufficient" for determining whether an operator is qualified.
According to Graham Brent, CEO of the National Commission for the Certification of Crane Operators (NCCCO), NCCCO reluctantly supported OSHA's delay because the changes to the rule were critically important to the effectiveness of the certification requirement. However, it was important OSHA acted with urgency.
"[Because] the positive impact of professionally developed, third-party, accredited crane operator certification on the incidence of deaths and injuries caused by crane accidents has been amply demonstrated during the more than 20 years that NCCCO has been providing it, every delay means U.S. workers continue to be exposed to risks that would otherwise have been mitigated," NCCCO stated in its official submission to OSHA in September 2017.
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