2022: The Year for Construction Employers to Get Employment Law Compliance Done

  • December 30, 2021

With the start of a new year, there is no better time to take on employment law compliance.

For many companies in the construction industry, HR issues often get pushed to the back burner, sometimes due to small HR departments with limited resources, or the looming nature of construction costs and deadlines. Whatever the reason, delaying compliance can create real risks in the employment law arena.

The top employment law compliance to-do list for 2022 as a construction industry employer:

  1. The Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS) and the federal contractor vaccine mandate requirements should top the list. Every construction industry employer subject to these statutes needs to anticipate and be ready for compliance. Do not be caught unprepared. As of this writing, the preliminary injunction on the Federal Contractor Vaccine Mandate remains in place until at least January, based on the 11th Circuit’s recent denial of the government’s request to lift the preliminary injunction put in place by the lower court. However, the Sixth Circuit removed the nationwide injunction of the OSHA ETS requirements. The issue of the stay of the OSHA ETS is already pending before the U.S. Supreme Court and the stay of the Federal Contractor Vaccine Mandate will likely make it there as well. Meanwhile, OSHA indicated it will not issue citations for noncompliance prior to January 10, 2022, and it would exercise discretion and not issue citations for noncompliance with testing requirements before February 9, 2022, if an employer is exercising reasonable, good faith efforts to come into compliance with the ETS. These dates are not far away. Now is the time to act. Moreover, various state vaccine laws may apply in the jurisdiction where you operate and affect the steps you may need to take.
  1. For federal contractors, review Executive Order 14042, “Ensuring Adequate COVID Safety Protocols for Federal Contractors,” and contract compliance requirements to spot any deficiencies. Affirmative action plans and certain notices and provisions in the handbook and workplaces (such as pay transparency notice and ethics) may be needed, and training may be required. Conducting self-audits for potential pay discrimination and noncompliance, and other areas of noncompliance (such as discriminatory hiring and promotion practices), should also be done. Failure to be proactive in these areas can be revealed in an audit or investigation and can result in significant actions, including debarment.
  1. Update handbooks. There have been many changes to state and federal laws in the last few years, some of which have gone unnoticed by employers in the chaos of the COVID-19 pandemic and therefore not implemented. This is not a viable excuse and missing or ineffective policies create federal or state liability. Updating handbooks can have great impact in the workplace with relatively little effort.
  1. Train supervisors. Getting supervisors off job sites and into a conference room for training, especially in the age of COVID-19, may be difficult. However, failure to train management on policies and compliance requirements can be a direct source of future liability. Depending on what state and federal laws apply, there may be a legal requirement to train and, for all employers, preserving legal defenses is necessary. Employees cannot be held accountable if the supervisors themselves are not familiar with the employer’s policies.
  1. Review and audit pay practices and classifications should make it on the to-do list. Many states have modified their minimum wage, exempt classifications, overtime calculations, and other pay requirements. Federal wage and hour law continues to evolve. Failures to pay claims lend themselves to class actions, making them attractive for litigation. The construction industry is targeted for certain mistakes. Employers can avoid pitfalls by proactively auditing wage and hour and other practices to ensure compliance.

For additional guidance, please contact a Jackson Lewis attorney.

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