A recent Law 360 headline described a corporate senior counsel explained providing an erotic book with “playful and provocative” drawings to a fellow manager as an “innocent gift.” He had even written an inscription which read, “a taste of Dharma Bum to remind that the Dharma breathes in and out and is nothing special,” referring, in part, to the Buddhist philosophy of life and the novel by beat writer Jack Kerouac. There are many other allegations and facts associated with the underlying discrimination claim, and I have no idea as to whether unlawful conduct actually occurred.
I’m writing this post while a band does a nice job with Beach Boys songs while my buddies here at the AGC National Convention in San Juan, are, to use the vernacular at the time, cutting a rug. And I’m typing. Not sure what that says about me, and yes, that was rhetorical, so spare me the responses. Now they’ve switched to Sweet Home Alabama. These guys are good and clearly know the group’s tastes. Good stuff.
The theory is that the contractors are under such competitive pressure that they will ignore OSHA requirements and will fail to pay for all hours worked or for overtime premiums. The assumption is that part of the reason manufacturers hand off certain functions is to escape liability for wage and safety violations. Moreover, critics believe that temporary and other non-traditional employees receive inadequate supervision and safety training.
The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) and the U.S. Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) recently signed a Memorandum of Understanding to “facilitate coordination and cooperation” between the two agencies concerning the anti-retaliation provision of the Surface Transportation Assistance Act (STAA), 49 U.S.C. § 31105, and the anti-coercion provision, 49 U.S.C. § 31136(A)(5). The STAA shields drivers of a commercial motor vehicle (CMV), including independent contractors, from termination, discipline or other retaliation for reporting or engaging in protected activity regarding CMV safety, health or security conditions. The anti-coercion provision gives the Secretary of Transportation authority to prescribe regulations to ensure that a CMV driver is not forced to operate a CMV in violation of federal safety regulations. The Memorandum provides for the exchange of safety, coercion and retaliation allegations that are received by one agency, but are under the purview of the other agency, and sets forth the process for doing so.
You may access this recorded webinar from last Thursday where industry experts thoughtfully discussed staffing and recruitment challenges, training, cranes, and a host of other safety and labor issues. Not as good as being at the AGC meetings (hint), but a more candid and nuanced discussion than generally available from a webinar or audio presentation.