Recent Impact of Indiana’s Right-to-Work Law

By: Christopher S. Drewry

Earlier this year, Indiana became the 23^rd state to enact a right-to-work (RTW) law (Ind. Code § 22-6-6 et seq.) in which workers cannot be compelled to pay union dues.  The statute applies to union contracts which were/are entered into, modified, renewed, or extended after March 14, 2012 and makes it a Class A misdemeanor to require an individual as a condition of employment to: (1) become or remain a member of a labor organization, (2) pay dues, fees, assessments, or other charges of any kind or amount to a labor organization, or (3) pay to a charity or third party an amount that is equivalent to or a pro rata part of dues, fees, assessments, or other charges required of members of a labor organization.

In a recent article in the Indiana Lawyer, some of the recent activity on Indiana’s RTW law was addressed, namely as it relates to the Indiana Department of Labor’s rule promulgation and ongoing litigation in state and federal court here in Indiana.

While passage of the RTW law took place in February of this year, the rules as to how it will be enforced are still being ironed out.  In June, the IDOL published notice of, and on a public hearing, which was held on July 10^th, on the proposed rule was held in order to establish procedures for the filing and adjudication of complaints of violations of the statute.  As the article points out, the current plans suggest that the IDOL will finish promulgating its rules sometime this month, after which they will be reviewed by the attorney general and governor.  From there, as IDOL spokesman Bob Dittmer indicated, the rules will then be published and finalized, potentially by October 1^st.

In addition to the rules regarding enforcement, there are other current issues that could impact the RTW law in Indiana.  Despite the statute stating that no one may be compelled to be a member of a union or pay dues for political activity or for general membership representation, litigation has nonetheless been initiated.  The article identifies one such case, United Steelworkers, et al. v. Mitch Daniels, et al., 45D01-1203-PL-19, in which the United Steelworkers Region 7 filed suit in Lake Superior Court alleging the RTW law violates a section of the state constitution that says “No person’s particular services shall be demanded, without just compensation.”  Essentially, the union has argued that they still are legally required to provide services to workers they represent, whether or not those workers are dues-paying members.  The State filed a motion for summary judgment, though no ruling has been issued at this time.  Additionally, the National Right to Work Legal Defense Foundation also intervened by filing an amicus brief on behalf of two steelworkers who said forced payment of dues violates their First Amendment right of freedom of speech.

In another similar case – James L. Sweeney, et al. v. Mitch Daniels, et al., 2:12-CV-81, filed in the U.S. District Court for the Northern District of Indiana – the International Union of Operating Engineers Local 150 challenged the RTW statute on grounds that it too, among other things, violates Article I Section 21 of the Indiana Constitution because it requires unions to render “particular services” without “just compensation”.  As in the United Steelworkers case, the State has filed summary judgment to dispense of the claims and is awaiting ruling on that motion.

Needless to say, between the IDOL’s much anticipated promulgation of rules and the ongoing litigation in the federal and state courts, the coming months should provide a great deal of insight on the application of RTW in Indiana and its impact on organized labor.

Meet the Extended Family: New AIA Contracts for Sustainable Projects

By: William E. Kelley, Jr., LEED AP BD+C

In 2011, the American Institute of Architects (AIA) released its AIA D503-2011 Guide for Sustainable Projects to assist Owners, Contractors, and Architects with drafting contracts for projects seeking some form of sustainable project goal, whether it is certification under LEED or other non-certification based sustainability goals.  The D503-2011 contains an overview of legal and practice issues that can arise on green building projects, as well as model contract language that can be added to AIA contract forms to address sustainable project goals. 

As follow-up to the D503-2011 Guide for Sustainable Projects, AIA released new contract forms in May 2012 to address these same issues.  These new contract forms include the A101-2007 SP (Owner-Architect Agreement); A201-2007 SP (General Conditions); A401-2007 SP (Contractor-Subcontractor Agreement); B101-2007 SP (Owner-Architect Agreement); C401-2007 SP (Architect-Consultant Agreement); and B214-2012 (Scope of LEED Certification Services for Architect).  All of these forms—with the exception of the B214-2012—are essentially modified versions of the already familiar 2007 AIA contract forms, with additions relating specifically to sustainable project goals. 

The new AIA contract forms contain several new defined terms that project participants will need to learn and familiarize themselves with, including, “Sustainable Objective”, “Sustainable Measure”, “Sustainability Plan”, “Sustainability Certification”, “Sustainability Documentation”, and “Certifying Authority”.  In essence, the “Sustainability Objective” is the defined sustainable goal for the project, which could include third-party certification or other sustainable goals not involving project certification or registration.  Once the “Sustainability Objective” is defined, the “Sustainable Measures” are identified, including specific design elements or construction means or methods that are necessary to achieve the “Sustainability Objective”.  The “Sustainability Plan” is the document that specifically identifies and describes the “Sustainability Objective” and that allocates roles and responsibilities for individual achievement of the “Sustainable Measures”. 

As part of the conventional family of AIA contract documents, the new sustainable project versions of the A101, A201, A401, B101, and C401 contract documents relate only to projects utilizing a design-bid-build project delivery method.  Projects utilizing other delivery methods, such as design/build, do not yet have AIA contract forms addressing these issues.  However, the model contract language outlined in the D503-2011 Guide for Sustainable Projects may be utilized for these types of projects in order to address the same type of sustainability process. 

As for the B214-2012, this document is an update from AIA’s prior LEED Certification exhibit, which was originally released as the B214-2007.  The B214-2012 document can be used as an addendum to the B101 Owner-Architect Agreement, where the Architect is also going to perform the services relating to LEED Certification.  However, the B214-2012 could also be used as the basis for a separate agreement between Owner and an independent LEED consultant for the project.  Unlike the other new sustainable contract forms, which can apply to a broad range of sustainable project goals, the B214-2012 is specifically designed for a project that is seeking certification as a LEED project.

Project participants involved in any aspect of green building or sustainability—no matter whether the projects actually seek LEED certification or not—should familiarize themselves with these new contract forms and evaluate whether these contracts are right for their particular projects.  Even if you choose not to use the new contract documents, these new forms should nonetheless serve as a good excuse to dust off your old contract forms and see whether those forms effectively address the unique aspects of projects incorporating sustainability goals. 

 

Three Green Building Developments to Watch in 2012: The 6 Month Check Up

By: William E. Kelley, Jr., LEED AP BD+C

At the beginning of this year (posted here), I highlighted three green building developments to watch in 2012: (1) the continued development of LEED 2012; (2) the planned release of the 2012 International Green Construction Code (IgCC); and (3) the planned release of new AIA contract forms for sustainable project goals.  Now that we are nearly six months into the year, it is time to check up on those three developments to see where they stand.

• LEED 2012 is dead, but LEED v4 is alive.  After going through the third and fourth public comment periods for LEED 2012, the U.S. Green Building Council (USGBC) announced on June 4 that it is delaying ballot on LEED 2012 until June 1, 2013.  Since LEED 2012 will no longer be released in calendar year 2012, the USGBC has also renamed this new iteration “LEED v4”.  What are the reasons for the delay?  Rick Fedrizzi (President, CEO, and Founding Chairman of the USGBC) says that as the USGBC has gone through the public comment process for LEED 2012, “we have heard repeatedly that while our [LEED] community continues to fully embrace our mission, they need more time to absorb the changes we’re proposing and to get their businesses ready to take the step with us.”  However, in recent days, there also have been questions raised from the chemical industry about LEED 2012’s proposed credit for avoiding “chemicals of concern” (including PVC), which concerns were voiced in a letter signed by fifty-six (56) members of Congress to GSA, urging GSA to stop using the LEED rating system unless these proposed credits were not reconsidered or removed by the USGBC.  We likely have not heard the last of the reasons for the delay in releasing the newest version of LEED, but one thing is clear: LEED 2012 is gone, and green building professionals should now focus on the newly named LEED v4.
  

• The IgCC is here. Will it gain momentum?  In March, the International Code Council (ICC) released its final version of the 2012 International Green Construction Code (IgCC).  As I explained in a prior post here, the IgCC is a model code intended for adoption by state or local jurisdictions.  It provides baseline code provisions for jurisdictions that want to mandate certain green building requirements, and it is a departure from other forms of legislation that have been based on LEED or other green building rating systems, in that it is solely administered and enforced by the adopting jurisdiction—not a third-party certification body.  The ICC reports that several states and local jurisdictions have already adopted the IgCC in some form, most commonly the form of a voluntary compliance path for other, already existing green building programs.  We will continue to monitor the IgCC to see how—and in what form—jurisdictions adopt the IgCC this year.
  

• AIA announces new contract forms for sustainable project goals with a press release quoting…me.  This past year, I had the opportunity to review the draft forms of the new AIA contract forms for sustainable project goals, as well as to submit comments, proposed revisions, and questions.  These contract forms are predominantly based on the model contract language outlined in the AIA D503-2011 Guide for Sustainable Projects (discussed here).   AIA released the final forms for these contracts during its national convention on May 17, and I was honored to be part of the press release from AIA announcing the release of these new contract forms.  The new contract language dealing with sustainable project goals clearly fills a void that was present in the prior AIA contract forms.  For example, in the 2007 version of the contracts, LEED was only mentioned as (1) an additional service for Architects; and (2) as part of the B214-2007 LEED addendum to the Owner-Architect agreement.  Prior versions of the contracts did not include language involving sustainable project goals for contractors, subcontractors, or in the general conditions for the project.  I will discuss these new contract forms in more depth in a future post, but for project participants involved in projects with any type of sustainability goals, strong consideration should be given to using these new contract forms to more thoroughly address sustainable project goals in the contract documents.            

Legislating Green: So, You Want to Be Sustainable. Now What?

By: William E. Kelley, Jr., LEED AP BD+C

Spring is in the air, Earth Day is around the corner, and green is on everyone’s mind.  So, let’s suppose that you are a city, town, or maybe even a state looking to encourage green building and sustainable design and construction practices in your jurisdiction.   You have a wide range of options available to you, but your legislative efforts likely will fall into one of two categories: (1) a mandate (i.e., requiring all covered projects to comply with the legislation); or (2) an incentive (i.e., providing some benefit, like tax credits or rebates, to projects that comply with sustainable project goals).  Within these two categories, jurisdictions further have the option of setting baseline requirements for the mandates or incentives with reference to codes (e.g., energy codes, green building codes, the IgCC, etc.), green building rating systems (e.g., LEED, Green Globes, Energy Star, etc.), or green building standards (e.g., ASHRAE 189.1, ICC 700, etc.), all of which have different benefits and potential challenges.

How do you figure out what path is right for you?  It depends on the goals that are you trying to advance in your jurisdiction.  What is it that you are seeking to encourage in your jurisdiction?

• Universal recycling programs for private businesses and residents?
• Incorporation of energy efficiency measures in all new construction projects?
• Developing a mechanism for requiring some level of sustainable retrofits for existing buildings?
• Encouraging development of alternative or renewable energy sources?
• Creating a plan to add more bike and pedestrian trails connecting residential developments to local amenities?
• Finding ways to lower utility bills for publicly owned facilities through system upgrades and facility management procedures?
• Looking for ways to encourage redevelopment of vacant lots, underutilized buildings, or challenging building sites?

It is easy to get bogged down in the myriad of available options for legislating green, but jurisdictions should first undergo a goal-setting process.  Goals should take on the form of short-term, middle-range, and long-term goals for sustainability.  The goal setting process should also include key stakeholders in the jurisdiction, including internal agencies (e.g., economic development, purchasing departments, facility managers, planning & zoning, code enforcement, etc.), as well as private entities and individuals (e.g., developers, owners, business leaders, contractors, architects and engineers, residents, etc.).  Ideally, those goals should then be incorporated into a “master sustainability” plan, outlining a comprehensive plan for the direction the jurisdiction wants to head on the sustainability front.  A “master sustainability” plan also helps set the stage for identifying how future developments, ordinances, laws, and policies are addressed, and how each of those future items fits into the overall sustainability plan for the jurisdiction.

The idea of beginning with a goal setting process seems basic, but jurisdictions often seem to take the opposite approach, by trying to first legislate green, and then figuring out how that legislation fits into the master plan for the jurisdiction.  While state or local governments may successfully adopt a green building law, the piecemeal approach may leave it without a real vision as to how that legislation fits into the overall development plan for the area.  Further, jurisdictions may be at a loss to figure out how to encourage use of the incentive program or even how to develop a successful enforcement program for mandates, unless there is a comprehensive plan in place.  How will you finance an incentive program?  How will you enforce green building requirements that may not materialize until after project completion?  A little planning can help you effectively answer these questions.

More importantly, without a master plan or vision, how will you know if your sustainability efforts are successful?  The master plan is the key.  With it, jurisdictions can begin evaluating all decisions on future development of the community in terms of how those developments will help reach the desired sustainability goals, instead of taking a piece meal approach to sustainability efforts.  No matter where you are in the process, we can help you navigate the process, assist you in the weighing of the multiple options available, and work with you to evaluate the legal processes, procedures, and considerations involved as you develop your sustainability plan and implement green legislation.

April 30th Deadline for Employers to Post NLRB’s Employee Rights Notice is On Hold

By: Robert J. Orelup

As the result of yesterday’s ruling by the D.C. Circuit Court of Appeals, the upcoming April 30, 2012 deadline for applicable employers to post the required NLRB employee rights notice has once again been delayed and is now put on hold.  The NLRB has since posted on its website that “[i]n view of the DC Circuit’s order, and in light of the strong interest in the uniform implementation and administration of agency rules, regional offices will not implement the rule pending the resolution of the issues before the court.”  See NLRB News Release.

Recently, federal district courts in the District of Columbia and South Carolina have issued decisions addressing the legality of the NLRB’s notice posting requirement that was previously set to go into effect on April 30, 2012.  The D.C. Circuit of Appeals has ordered an expedited briefing schedule, with a following oral argument to take place in September 2012 to resolve the pending legal issues on appeal surrounding the NLRB’s notice.  As such, even if the NLRB were to prevail, it is likely that any required posting deadline would not be re-implemented by the NLRB prior to September or October 2012 at the very earliest.  We will continue to keep you updated on the legal developments related to the Employee Rights Notice and their impact on your company.

For additional information regarding this issue, please contact Bob Orelup of the DSV Labor and Employment Group via telephone (317) 580-4848, or directly via email (rorelup@DSVlaw.com). For more information about our law firm, please visit www.DSVlaw.com.

IOSHA and OSHA Delay Full Enforcement for Residential Fall Protection, Again

By: Sean T. Devenney

As previously discussed here and here, residential contractors have new fall protection regulations to be aware of or else be subject to penalties from OSHA or IOSHA.  On February 22, 2012, IOSHA updated, again, the expected date for full enforcement relating to “new” residential fall protection rules.  The new “full” enforcement date is now set for September 15, 2012.  From now until September 15, 2012, IOSHA will continue to monitor fall protection on residential projects.    According to IOSHA:

• Residential construction contractors and sub contractors who are using fall protection that meet the interim guidance will not be cited.  Where the employers program meets the interim guidelines or the employer is making a good faith effort to meet the new guidelines but has fallen short in some area, IOSHA will make a referral to INSafe for consultative services.
• If there is no Fall Protection Program and no effort is underway to comply with the existing guidelines, a citation will be issued to the employer.

Employers are encouraged to move quickly on the acquisition of any required personal protective equipment and development.  Once again, we shall whether the September 15, 2012 date for full enforcement will survive.

A copy of IOSHA’s directive can be found here.

EEOC Issues New Age Discrimination Regulation

By: Melanie M. Dunajeski

The Age Discrimination in Employment Act (“ADEA”) prohibits employment discrimination against people who are 40 years of age or older. On March 29^th, the EEOC issued its “Final Regulation on Disparate Impact and Reasonable Factors Other than Age.”  The final rule makes the EEOC’s ADEA regulations consistent with recent Supreme Court case law, and clarifies the “reasonableness test” embraced by the “Reasonable Factor Other than Age” (“RFOA”) defense.  Consistent with the Supreme Court’s 2008 holding in Meacham v. Knolls Atomic Power Laboratory, the new rule provides that RFOA is an affirmative defense in disparate-impact cases for which the employer bears the burdens of production and persuasion. This standard of proof is higher than a simple “rational basis”, since proof that an action was rational focuses on whether an articulated reason is a pretext for intentional discrimination.

The rule also encompasses the Supreme Court’s 2005 holding in Smith v. City of Jackson. “In Smith, the Supreme Court bluntly held that the RFOA provision is not a statutory safe harbor from liability for disparate treatment when the employer merely had a rational justification for its actions,” the EEOC stated. “The RFOA defense necessarily requires more than merely a showing that the employer’s action was not irrational or not arbitrary.” Noting in its preamble that factors such as “flexibility, willingness to learn and technological skills” are particularly susceptible to age-based stereotyping, the EEOC in its final rule also provides that giving supervisors unchecked discretion to engage in subjective decision-making might result in disparate impact against older workers, making it more important than ever that employers should take reasonable steps to limit, audit or oversee the discretionary actions of supervisors.  The full text of the rule can accessed through www.eeoc.gov.

If you have any questions about how this final rule may affect your employee handbook, policies or procedures, please contact the Labor & Employment attorneys at DSV.