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 No long introduction required here.  With iPhones, Blackberrys and laptops, everyone in the 2009 workplace knows that work can follow an employee home and to vacation (ABCNews published a good overview of the issue).  

Recently, however, terminated employees are seeking compensation for this "overtime" work through costly litigation with high-stakes for employers across the country.

What will the courts say?  It's not clear.

The U.S. Fair Labor Standards Act was passed in 1938 with working conditions for factory workers in mind.   These workers punched into work, and out of work, with very little opportunity to continue their work duties after-hours while at home or on vacation.   

But how times have changed.    And now, when you take the FLSA's rule that workers must be paid overtime whenever they work 40+ hours (regardless of any permission from an employer), and apply it to the "after-hours" work performed by so many of the country's workforce...the result is complicated.

In today's economic client, construction companies are looking to be leaner and meaner, and that sometimes means less salary workers and more hourly employees.  It also means companies are working to maximize the return on each worker.

More and more, construction workers and project managers are being outfitted with mobile devices to communicate about the project through email and text messages...and even to take photographs of the jobsite and work through project management systems.  When the mobile devices go home or on vacation...is your company prepared to pay overtime?

Right now, the law on this issue is simply unclear, and the best practice for those in the construction industry is to discourage workers from working at home or on vacation (don't bother them!), or to ask workers to log this time and turn it into your company for payment.  

There's no telling how the courts will decide this issue, but if it goes against employers, the failure to pay employees for out-of-office work could be expensive.

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We've monitored the federal government's potential E-Verify requirement for nearly a year now.   After a number of delays starting in 2008 and continuing until this summer, the E-Verify requirement was finally given the green light in July 2009.

While backed by the new President and slated to take effect on September 8, 2009, there seemed to be just one more hurdle:   The litigation challenging it.

Today, AGC's Smart Brief reports that a federal district court has ruled on the legality of the controversial E-Verify requirement, holding that the requirement is legal.  

On September 8th, therefore, systems are a-go for the E-Verify requirement.

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E-Verify, a government web-based system that helps employers verify a workers legal status, has been in the news before.  

Originally a George W Bush executive order, E-Verify was slated to become mandatory for federal contractors beginning January 15, 2009.   The change in executive administrations and a handful of lawsuits, however, pushed the requirement back indefinitely.

This week, the Obama administration chimed in on the subject, and announced that it would support the E-Verify requirement, and that it would take effect across the country starting September 8, 2009.   Appropriately, the day after Labor Day.

Any federal projects or businesses receiving money under the federal stimulus program will be subject to the rule, and required to register and use the E-Verify system.

Differences Between Obama E-Verify and Bush E-Verify

When comparing the Obama E-Verify requirement and the Bush E-Verify requirement, one difference stands out:   Obama has ditched the "No-Match" system.

As a result, for better or worse, the requirement going into effect this September will have substantially less teeth.

Ditching the "No-Match" component of the E-Verify requirement will benefit employers because they will not be required to terminate (on such a tight time-line) employees whose social security numbers do not match with the system.

It will benefit workers, too, because Obama will not allow the federal government to use mismatched SSN data to find illegal immigrants in the workplace.

Is It Really Going To Happen This Time?

The short answer:  Yes.

While it has been delayed repeatedly in the past year, and there's always a possibility for more delay, it looks like the latest effective date will stick.  

The Obama administration has reviewed the requirement, and is now standing behind it, and by ditching the most controversial aspects of the rule, there will be fewer legal and political challenges.

Beginning September 8, 2009, therefore, the government will award contracts only to companies in compliance.

Who Needs to Be Prepared?

A lot of people need to be prepared for this E-Verify requirement.  

While the controversial components of the requirement have been removed by Obama, the scope of the rules applicability has actually gotten broader.   The requirement will not only apply to contractors and subcontractors on federal projects, but it will also apply to any business receiving money under the federal stimulus project.

With the influx in federal and state spending on construction projects, and the decrease in private work available, more and more contractors are being forced into bidding and working on public works.  And with the now wider reach of the E-Verify program, contractors and subcontractors need to prepare themselves.

In February 2009, we wrote a post here at the Construction Law Monitor titled "The Stimulus Package and Your Construction Business."  

The post discussed the differences between private and public works, and addressed some of the issues private contractors face when working on its first public project.   

Add the new E-Verify requirement to the list, and the article is still a good read.

Is this Still Controversial?

Even with Obama's backing of the system and some tweaks to its enforcement power, the E-Verify program definitely still has its detractors.

The San Bernardino Sun News just ran an article about how the E-Verify system puts Obama at odds with some democrats.   

Despite the controversy, the E-Verify requirement will take effect on September 8th, and construction companies around the country must be prepared.

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The Employee Free Choice Act has not had a dearth of news coverage, and just last week, the Democrats in Congress officially unveiled the controversial bill.

While predicted to "sail" through the House, it faces a serious challenge in the Senate according to the Wall Street Journal.    The WSJ reports that many leading Senate Democrats who previously voiced support for the bill have backed off recently, perhaps in light of the controversy garnered by the act.  Louisiana veteran senator, Mary Landrieu, is among those democrats reconsidering their positions.

The most controversial aspect of the act - by far - must be the proposed eliminate of "secret ballots" to determine unionization, and the substitution of the secret ballots with a "card check" system.

While labor unions has previously urged that it would not compromise on the EFCA, with the bill's potential failure in the Senate, AOL News reports that democrats may be open to compromising on the proposed card-check system.

As the debate continues, so will news on the EFCA.   You can follow our discussion of the act's progress at this tag:  Employee Free Choice Act

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The federal E-Verify program has been a hot immigration topic throughout the past year.  

The internet-based hiring tool operated by the SSA and Department of Homeland Security simply allows employers to verify the SSN used by employees.  For the time being, the e-verify program is used by employers on a voluntary basis, but its use has been the subject of much legislative contention.

An executive order signed by President Bush was going to make use of the E-Verify program mandatory by federal contractors...but legal challenges to the program put that order's effective date on hold.   The rule seemed to be scheduled to take effect until President Obama's inauguration put it on further hold.

The Construction Law Monitor reported on the program's ups and downs here.

While the program is on an indefinite hold, it's certainly not out of the news.

This past weekend, the Seattle Times reported that Puget Sound employers are voluntarily using E-Verify to check the legality of its employers.   Running a search on Twitter, a popular microblogging platform, shows that conversations about E-Verify are not lacking.

Contractors should be especially interested in the E-Verify controversy.   

On the one hand, if the program does become mandatory, the construction industry will certainly be one of the most scrutinized by regulators.

On the other hand, since the construction industry is at the center of the immigration debate, contractors can protect themselves by being careful with who they hire, and voluntarily using the E-Verify program.

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Last week we blogged about a controversial "one-sided" labor bill in the Washington legislature that would prohibit companies from requiring employees to participate in meetings related to political or religious matters, including labor issues.

The bill was coming before the legislature for vote today, but was instead scrapped because - as Gov. Chris Gregoire stated - an email from a state labor group raised "serious legal and ethical questions."   

While the email has not been released, the Seattle Times reports that "knowledgeable sources who have read the e-mail confirmed that it came from the Washington State Labor Council," and that it linked "campaign donations" to the legislation.

The controversial bill is part of a recent flurry of labor law changes and conversation, and the bill's high profile death will certainly be celebrated by business interests.

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An editorial in the Seattle Times this week suggests that two bills before the Washington legislature related to state labor laws would "run afoul of free speech rights and tread into a venue that belongs to Congress."

The two bills are being considered at a fairly turbulent time for labor legislation at the federal level.  With the inauguration of the Obama Administration, many have suggested that the county may experience a historic shift in employment and labor law matters.

So what is so controversial about the "one-sided labor bill" in Washington?

Essentially, the bill would provide employees the right to not attend an employer-called meeting if they have a "reasonable belief" that it is about religious or political matters.  

While altruistic on its face, the Seattle Times editorial notes that meetings about union-related issues (pensions, medial plan, union representation, etc.) would be considered a political matter.   The editorial comments:

The bill's real purpose is to undermine meetings employers call when they are in a fight with a union...

The bill is entirely one-sided:  It restricts employers but not unions.  It tilts the balance in a way that has not been done in any other state.  And already Washington is one of the most union-friendly states.

We'll see how far the bill gets in the legislature - but with the toiling economy, the shift in federal politics on labor law issues, and other union-friendly factors, it's likely not safe to assume its defeat.

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The National Law Journal published an article last week titled "Stage is Set for Legal Labor Brawl," and the opening line of the article sums it up perfectly, stating:

Business calls it "Armageddon." Labor says it's "a modest step."

The article discusses one of the hot topics in labor law these days, the Employee Free Choice Act.  Around the blogosphere and news agencies, discussion of the EFCA is on fire.   A Google Video search of the topic yields propaganda from both sides, and on Chris Hill's Construction Law Musings, I recently published a guest post summarizing argument from both proponents and opponents of the bill.

While the EFCA is certainly on the forefront of the labor law debate, its clear that its not the only argument in town. 

To the contrary, since the recent inauguration of President Obama, there has been a substantial shift in labor law issues facing the construction industry, and it's expected that more is on the way. 

One of the most controversial actions by President Obama in the construction industry is the repeal of Executive Order 13502, which prohibited project labor agreements (PLAs) on federal and federally funded construction.   ABC issued a press release specifically directed at this action, contending that it opposes PLAs because they "eliminate merit shop contractors from competing for and winning construction projects."  The ACG also came out against the repeal of 13502 here.

Another labor-law related act already performed by President Obama is the signing of the Lilly Ledbetter Fair Pay Act of 2009.  The act was signed by the President on January 29, 2009, and extends the time period allowed for employees to seek compensation for unequal pay practices.  The act is retroactive to May 28, 2007, and applies to all claims of pay discrimination on or after that date.  Read more about the act at the AGC website here, or on CNN, which covered the Act as "Obama's First Law."

From the perspective of the construction industry, it's a love/hate relationship with President Obama thus far, just one-month into his tenure.

On the one hand, as the Wall-Street Journal reported in mid-January, the construction industry has counted on Obama to put together a strong stimulus package that invested in federal contracting projects (and he pulled through).

On the other hand, however, President Obama is leading a potentially historic shift in employment and labor law matters that will seriously impact construction businesses.

Time will tell how the relationship between President Obama and the construction industry will fare.  So far, however, it's been a mixed bag.

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This morning, Chris Hill graciously allowed me to publish a post on his Construction Law Musings blog about the Employee Free Choice Act. 

In the posts' explanation of the Employee Free Choice Act and how it may impact the construction industry, I quote Dave Seitter of the Midwest Construction Law Blog from a very informative post on the act:

The untold implications of eliminating the secret ballot election are many, and are derived from the protections crafted under the NLRA over the last half-century. Most importantly, employees will be denied access to the normal pre-election debate that shapes informed decision-making, and employers will lose the opportunity to present an alternative point of view.

This radical change will also erode employees' free choice. Importantly, there are currently no restrictions in the EFCA on the time period during which labor organizations can collect authorization cards. A union that collects a single card each week from a workforce totaling 200 employees could potentially acquire cards from the majority of the workforce over the course of two long years.

Read my post at Construction Law Musings by clicking here.   A big thank you to Chris Hill for giving us the opportunity to speak to his readers.

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