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JUNE 2009 NEWSLETTER In this issue:
 Frequently Asked Questions about ARRA’s Impact on COBRA Amber Bagley In recent weeks, attorneys from CGWG have been on the training circuit in efforts to inform our clients about the impact of the American Recovery and Reinvestment Act of 2009 ("ARRA") on COBRA. Below are a few frequently asked questions that we were repeatedly asked regarding the implementation of the COBRA changes.
Model notices were made available by the Department of Labor in March, and those notices should have been distributed by April 18, 2009. See www.dol.gov/COBRA. Please call Allen Dobson or Amber Bagley if you have any more questions about ARRA’s impact on COBRA.  Arkansas’ Materialman’s and Mechanic’s Lien Statues Amended David Dixon Arkansas recently passed HB 1594, now Act 454, which amends Arkansas’s mechanic’s and materialmen’s lien statutes, Arkansas Code Annotated § 18-44-101, et seq. Effective on August 1, 2009, the amendments create more certainty that property owners, particularly residential property owners, will actually receive the required statutory lien notices, provide an enforcement mechanism for contractors failing to provide homeowners with the required pre-construction notice, and provide a quick means for frivolous, improperly filed liens to be removed as a cloud on title. More specifically, the Act:
Each of these amendments helps streamline the lien notice and filing requirements, yet still assures protection for all interested parties. For clarification on the amendments or for assistance with filing, enforcing or defending a lien, please contact the offices of Cross, Gunter, Witherspoon & Galchus, P.C.  Ledbetter To-Do List Elizabeth Cummings In the wake of the recently-enacted Lilly Ledbetter Fair Pay Act, employers must now scrutinize their human resources, benefits, and compensation practices in order to reduce the risk of any potential liability pursuant to the Act. The following is a brief to-do list which identifies some things employers must do, should do, and may want to think about doing to comply with the Act. For further guidance or information regarding the Act, please contact our firm. Things an Employer Must Do: 1. Run the numbers on all employees' compensation packages, including starting pay, merit raises, cost of living increases and benefits. Individuals who perform the same jobs and have the same qualifications should be paid at the same rates.
2. Adopt a new compensation policy if the old one is resulting in pay inequities. 3. Review and modify record retention policies.
4. Review and modify employee handbooks and policies to emphasize that discriminatory compensation practices and decisions are strictly prohibited and to ensure that they clearly reflect the employer’s commitment to fair employment practices.
5. Be cautious when responding to charges of discrimination with regard to producing compensation information on employees similarly situated to the charging party, even if the charge is not a compensation discrimination charge. If you furnish information that indicates that the charging party was paid less than others, it could prompt an investigation into compensation discrimination. Things an Employer Should Do: 1. Review and modify compensation policies.
2. Adopt an internal grievance process that would allow employees to raise complaints about compensation. 3. Train supervisors who have input into hiring, firing, disciplining and promoting workers on what the law requires.
4. Review any closed or pending charges or lawsuits. Also, review liability insurance policies to ensure that claims from ex-employees regarding incidents long past are covered and make changes in coverage if necessary. Things an Employer Might Think About Doing: 1. Review and revise job titles.
2. Maintain addresses and contact information for former managers and supervisors who made pay decisions, or decisions which might have affected compensation, even afterthose employees have left the company, in case they are needed to testify later (ideally, however, those decisions should be adequately documented so that testimony of previous supervisors is not necessary). 3. Only give cost-of-living raises and reward performance with one-time bonuses that do not perpetuate in the form of regular paychecks.  New I-9 Form Became Effective April 3, 2009 Jimmy Cline Employers are now required to use the U.S. Citizenship and Immigration Services’ ("USCIS") new Form I-9, which became effective on April 3, 2009. This new form contains February 2, 2009 as the revision date. The most significant change in the revised I-9 form is that expired documents are no longer acceptable forms of identification for employment authorization. Documents without an expiration date, such as a social security card, are considered unexpired. Additionally, changes were made to “List A” documents—documents that establish both a workers’ identity and employment authorization. Specifically, the following documents have been added as acceptable documents under List A: (1) foreign passports containing the I-551 permanent residence notation printed on a machine-readable immigrant visa; (2) the new U.S. Passport Card; and (3) passports and certain other documents for citizens of the Federated States of Micronesia and the Republic of the Marshall Islands. Furthermore, several now-expired employment authorization documents were eliminated from List A as acceptable documents, including Forms I-688, I-688A, and I-688B. The new I-9 form also changed Section 1 with regard to how new hires attest to their status. For instance, in addition to the following three options to check: (1) a U.S. citizen or national; (2) a lawful permanent resident; and (3) an alien authorized to work in the U.S., the form adds a fourth choice—non-citizen nationals of the U.S. Non-citizen nationals of the U.S. are those individuals who were born in American Samoa, certain residents of the Northern Mariana Islands who have not become U.S. citizens, and certain individuals who were born abroad to non-citizen U.S. nationals. Although U.S. nationals do not possess full U.S. citizenship, they are not foreign nationals, and they may enter and work in the U.S. without restriction. Along with the new I-9 form, USCIS published its new Handbook for Employers (M-274), which discusses the new I-9 form requirements and provides instructions for completing the form. The following are new instructions contained in the updated Handbook for Employers:
Both the new Form I-9 and Handbook for Employers may be obtained by visiting www.uscis.gov/i-9.  Eighth Circuit Rules that OSHA May Cite Contractors for Hazards Created by Subcontractors Travis "Bo" Loftis General contractors may be cited by the Occupational Safety and Health Administration (“OSHA”) for hazardous work conditions faced by their subcontractors’ employees at a construction site, according to the Court of Appeals for the Eighth Circuit decision in Solis v. Summit Contractors Inc., 558 F.3d 815 (2009). The Court’s ruling upheld the Department of Labor’s “controlling employer” citation policy, and overturned an Occupational Safety and Health Review Commission (“OSHRC”) order that vacated a citation issued in accordance with the policy. Summit Contractors, Inc., a Little Rock, Arkansas company, was the general contractor on a college dormitory construction project. Summit subcontracted the entire project and had only four of its own employees on site. Summit’s project superintendent warned one of its subcontractors that its employees were working without personal fall protection on scaffolds without guardrails. An OSHA officer cited both the subcontractor and Summit for the safety violations, even though the violation did not endanger any Summit employees. Under the controlling employer citation policy, OSHA can issue citations to general contractors at construction sites who have the ability to prevent or abate hazards created by subcontractors through the reasonable exercise of supervisory authority, regardless of whether the general contractor’s own employees are exposed to the hazard. Summit argued that this policy conflicted with the plain language of OSHA regulation 19 C.F.R. § 1910.12, which requires employers to protect “the employment and places of employment of each of his employees engaged in construction work.” Summit argued that this regulation limits a contractor’s duty to the protection of its own employees. A divided OSHRC rejected the OSHA citation, and the Labor Department appealed. On appeal, the Eighth Circuit threw out the OSHRC’s order. The court separated 29 C.F.R. § 1910.12 into two parts, with part (1) referring to the requirement that an employer must protect the employment of each of his employees and part (2) referring to the requirement that an employer must protect the places of employment of each of his employees. The court held that part (2) requires the employer to protect others who work at the place of employment so long as the employer also has employees at that place of employment. The court therefore concluded that the regulation “does not preclude OSHA from issuing citations to employers for violations when their own employees are not exposed to any hazards related to the violations.” The court acknowledged Summit’s argument that the policy was ill-conceived and noted that it “places an enormous responsibility on a general contractor to monitor all employees and all aspects of a worksite.” The court said that “these policy concerns should be addressed to Congress or to the Secretary and not to the courts.”  EFCA: Still Alive and Kicking Jess Sweere Organized labor is not giving up, and they have some influential supporters. In a town hall meeting held in New Mexico on May 14, President Obama repeated his support for the Employee Free Choice Act (S.560, H.R. 1409, “EFCA” or "the Act”), also known as the “card-check” bill, saying the legislation is needed to make it easier for workers to gain union representation. Obama said, “The scales have been tilted to make it really hard to form a union.” Seldom does pending legislation create divisiveness among supporters and opponents of a bill as currently seen surrounding card-check. The Act would strip the right to a secret ballot from every American worker when deciding whether to support a union in their workplace. Moreover, the bill makes changes to federal labor law’s scheme of penalties and remedies that are one-sided, unnecessary, and unprecedented. Finally, for the first time in the history of American private sector labor law, the Act imposes a one-size-fits-all scheme of mandatory, binding interest arbitration with respect to initial contracts. If enacted, the EFCA would effectively eliminate workplace elections by requiring the NLRB to certify the union as a bargaining representative if a majority of employees signed union cards. This process, known as card-check, could subject workers to coercion and intimidation by union organizers desperate to get cards signed. The EFCA is considered unlikely to pass in the 111th Congress in its present form. Obama recognized that the Senate does not have enough votes to pass the bill as written, but said “there may be areas of compromise to get this bill done.” Senator Specter (D-Pa.), an original sponsor of EFCA in 2005, announced his opposition to the legislation March 24, because, among other things, it eliminated the secret ballot and called for mandatory arbitration. Specter said he has been talking with labor leaders and other senators to discuss some kind of compromise as it relates to the bill. In Arkansas, supporters in favor of the EFCA are taking the debate directly to their members of Congress. Union members and allies recently rallied outside the office of Sen. Blanche Lincoln (D), encouraging her to support the pending legislation. Senator Lincoln, like Specter, recently announced that she could not support the bill “in its current form.” A letter of opposition signed by businesses of every size and industry with operations in all 50 states was recently sent to Congress by the U.S. Chamber of Commerce bearing the names of more than 3,100 companies. “This letter demonstrates the increasing opposition by companies, small and large, and across all industries, to this misguided legislation,” said Randy Johnson, the U.S. Chamber’s vice president for labor, immigration, and employee benefits. “We support workers’ rights to form a union, but this is a bad bill.” CGWG has developed a series of initiatives to help companies prepare for union organizing. If you have questions, please contact any attorney at the Firm. News Around the Firm  Cross, Gunter, Witherspoon & Galchus received the Gold level distinction at the 2009 Governor's Work-Life Balance Awards ceremony. Carolyn Witherspoon accepted the award during a ceremony on May 12 at the Peabody Hotel in Little Rock. The award recognizes CGWG’s dedication to the creation of a family-friendly work environment and respect for their employees’ lives outside of the office. Clearly, employees benefit from a workplace that respects and supports their family responsibilities and that recognizes employees are not only “workers” but also dedicated family members committed to doing their best both at and outside the workplace. We would like to thank all of our clients and friends who were able to attend the CGWG Fort Smith reception on May 7 honoring Mike Redd and Scott Zuerker. Your involvement in our special event was appreciated and we look forward to further expanding our relationship with you and the Fort Smith community. Carolyn Witherspoon, Donna Galchus, Allen Dobson, Rick Roderick, and Missy Duke spoke at the CGWG Basic Supervisor Training in the Little Rock offices on June 2. The program will also take place in Jonesboro at the ASU Student Center on June 16. The fee is $150 per person. Contact Kelly Davenport at 501-371-9999 or kdavenport@cgwg.com to register. Russell Gunter has received the Jim Wilkins Lifetime Achievement Award from the Arkansas Society of Human Resources Management (ARSHRM). The purpose of the award is to recognize an individual who has continually shown outstanding service and has promoted the profession of Human Resources Management throughout out their career. Carolyn Witherspoon, Jess Sweere and Travis “Bo” Loftis co-authored “New Family and Medical Leave Act Regulations: The Good, The Bad, and The Scary” in the April 2009 Volume 10 of The Transportation Lawyer. Carolyn Witherspoon spoke to the National Business Institute on May 13. Her topic was "Employee Discharge & Documentation: How Not to Become a Defendant." Ms. Witherspoon also spoke about career opportunities at the American Bar Association Section of Labor and Employment Law program on April 13 at the William H. Bowen School of Law in Little Rock. On May 27, she delivered a speech for the American Law Institute (ALI-ABA) entitled "Developing Confidentiality Issues Affecting Attorney’s Ethical Obligations in Our Increasingly Hi-Tech Landscape." Benjamin Shipley, Susan Keller Kendall and David Dixon presented at a Lorman seminar in Fayetteville on April 29 discussing various employment law issues. Benjamin Shipley was a guest speaker at the Arkansas Community Action Agencies Association (ACAAA) Annual Conference in Fort Smith on May 28. His presentation was entitled "What Changes Might Affect Your HR Compliance." Rick Roderick made a presentation on March 25 for the Associated General Contractors of Arkansas on union avoidance. On April 21, he made a presentation for the Arkansas Industry Liaison Group on new human resources public policy issues. Mr. Roderick made a presentation for Arkansas State University workforce training program in Searcy on harassment prevention on May 12. Missy Duke and Elizabeth Cummings spoke on immigration and discrimination at the Arkansas Water Works & Water Environment Association Annual Conference in Hot Springs on April 28. Brian A. Vandiver has been elected Vice Chair of the Board of Directors for Special Olympics of Arkansas. has been elected Vice Chair of the Board of Directors for Special Olympics of Arkansas. Scotty Shively is speaking at the Arkansas Conflicts Resolution Association's (ACRA) annual conference on June 5 at the William H. Bowen School of Law in Little Rock. Her speech is entitled "What's New in Arbitration?". Travis “Bo” Loftis has been appointed to the Arkansas Bar Association’s Law Related Education Committee by President-Elect Donna C. Pettus.
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