DHS Advises Businesses To Secure Chemicals The federal government recently sent out letters to 7,000 businesses that they are considered high risk-terrorist targets because they house large amounts of chemicals. The sites - which range from major chemical plants to universities, food processing centers and hospitals - will need to complete a security vulnerability assessment so the government can decide how to monitor their security measures in the future. U.S. intelligence officials say terrorist organizations, including al-Qaida, favor chemical attack methods because of the severe consequences they can inflict. "I'm trying to complicate these guys' lives," said Bob Stephan, assistant secretary of infrastructure protection at the Homeland Security Department. Imposing varying security measures at sites across the country not only secures the materials inside the sites, but it creates a
more difficult operation for the terrorists. Earlier this year, 32,000 businesses storing certain chemicals had to complete the initial Department of Homeland Security (DHS) Top Screen that was used to determine which facilities would be regulated and at which level. The DHS then pared the list down to 7,000 businesses that were placed into four risk tiers. These facilities will now have to go through the second phase of compliance which requires them to complete Security Vulnerability Assessments. These assessments are designed to gauge the facility's ability to withstand certain attacks. Homeland security inspectors will eventually visit the highest risk facilities each year to make sure they are complying with enhanced security measures by implementing a Site Security Plan (SSP). If these sites do not comply, they could face hefty fines and could ultimately be shut down until they meet federal security standards. As the department considers these 7,000 sites, it also will look at physical security; cyber security; insider threat potential; how hazardous a chemical release could be to the nearby communities; how dangerous the chemicals are if they are mixed with water; and whether the chemicals could be easily stolen from the sites and used to kill. Huffmaster offers a full range of services through our SecurCHEMTM chemical security program which includes consulting, training or even completing the Security Vulnerability Assessment or Site Security Plan. You also can register for our upcoming SVA seminars by visiting the Chemical Security section on our website.  | |
New Administration Could Affect Human Resources When a new administration is elected in November, it will mark the first time in more than 50 years that neither an incumbent president nor vice president has been a candidate. What effect will the new administration have on HR when it comes to labor relations, government regulations and laws affecting employers? Michael W. Fox with Ogletree Deakins in Austin, Texas, did some political prognosticating on the impact (hidden and otherwise) of political change on HR. "The law tends to go through cycles and in the employment law world, the pendulum of the law has tended to swing more toward the side of employers, rather than toward the side of employees. We now have a serious potential that the law could begin to swing the other way." Fox predicted HR may see itself facing some of its most challenging times after the general election. A Democratic victory could likely lead to increased litigation and compliance costs for employers, especially if Democrats have a working majority in the U.S. Senate. "If we have a Democrat president, it will be the first time that a president has been closely aligned with organized labor. If you haven't dealt with organized labor in your workplace, I can't emphasize how quickly your world could change. Companies that never thought they would be union targets may be unionized." While the Reagan years signaled the decline of organized labor, passage of proposed legislation such as the Employee Free Choice Act could strengthen organized labor by changing the way that unions can be certified and increasing the penalties for unfair labor practices. Fox advised HR practitioners to keep on top of proposed legislation that could affect their workplace and to make sure the C-suite in their organization is aware of the potential impact of political developments. "Check with trade associations in your industry to identify industry-specific issues and communicate with your political representatives before the election to find out where they stand on these issues," Fox said. | |
NLRA Preempts California Law Limiting Use Of State Funds In a 7-2 decision, the U.S. Supreme Court held June 19 that a California law prohibiting employers that receive state grants of any amount or more than $10,000 annually in program funds from using them "to assist, promote, or deter union organizing" is preempted by the National Labor Relations Act (Chamber of Commerce of the United States v. Brown, U.S., No. 06-939, 6/19/08). The state law provisions are preempted under Machinists v. Wis. Employment Relations Comm'n, 427 U.S. 132, 92 LRRM 2881 (1976), "because they regulate within ‘a zone protected and reserved for market freedom,' " Justice John Paul Stevens wrote for the majority. The Supreme Court previously found that Section 8(c), which was added to the NLRA in 1947 by the Labor-Management Relations Act, also called the Taft-Hartley Act, protects non-coercive speech by employers and unions from regulation by the National Labor Relations Board and manifests a "congressional intent to encourage free debate on issues dividing labor and management."  "California's policy judgment that partisan employer speech necessarily ‘interfere[s] with an employee's choice about whether to join or to be represented by a labor union'... is the same policy judgment that the NLRB advanced under the Wagner Act [the original version of the NLRA enacted in 1935], and that Congress renounced in the Taft-Hartley Act," Stevens said. The Supreme Court overturned the U.S. Court of Appeals for the Ninth Circuit's 12-3 decision that the California law is not preempted (463 F.3d 1076, 180 LRRM 2641 (9th Cir. 2006) (en banc)). Stevens rejected as unpersuasive the appeals court's reasoning that the spending restrictions apply only to the use of state funds and not their receipt, that Congress did not leave the zone of activity free from all regulation, and that the state law is modeled on federal spending restrictions. Chief Justice John G. Roberts and Justices Antonin Scalia, Anthony M. Kennedy, David H. Souter, Clarence Thomas, and Samuel A. Alito joined in the majority opinion. Justice Stephen Breyer wrote a dissenting opinion, joined by Justice Ruth Bader Ginsburg. "Although I agree the congressional policy favors 'free debate,' I do not believe the operative provisions of the California statute amount to impermissible regulation that interferes with that policy as Congress intended it," Breyer said. Business organizations lauded the Supreme Court decision, while attorneys representing the AFL-CIO expressed disappointment and suggested that the California law and similar state laws could be amended to pass muster with the high court. Businesses Seek Security Solutions For Copper Theft The growing economies of India and China have created a large demand for copper and other non-ferrous metals over the past several years. Combine that with a weakening dollar and the price of copper has skyrocketed over the past eight years from about 80 cents a pound to over $3.50 per pound. The dramatic increase in copper prices has not gone unnoticed by criminals and preventing copper theft has become one of the biggest contemporary challenges facing businesses worldwide. Despite the severity of the copper theft problem, no federal or state agency has yet to gather statistical data on the crime. According to a recent article on SecurityInfoWatch.com, utility companies along with various commercial builders have been some of the hardest hit industries by the copper theft epidemic. According to Jeff Wilson, a spokesman for Georgia Power, losses due to copper theft have increased more than 350 percent in the past two years. "Anywhere they can find copper, they're taking it," he said. "It's coming off poles, it's coming off transformers, it's coming off of construction sites, just anywhere it's at," added Philip Peacock, investigations supervisor for Georgia Power. In addition to the financial impact, Wilson said that the thefts also jeopardize the safety of company employees, as well as others. "Obviously, it's an ongoing concern for us. Not only is there a financial impact, but there is also a significant safety impact as well," he said. "Our employees who work in substations have safety training and they're required to wear all the protective equipment and take the necessary safety precautions. The people who are breaking into facilities and that type of thing, safety is not really a concern for them." Employers Face Risks In Monitoring Workers' Activities Employers potentially face liability if their online investigations of applicants and their monitoring of employees in the workplace exceed certain boundaries, according to attorneys participating in a recent seminar sponsored by the American Bar Association's Employment Law Section. Although most employers rely on conventional methods of conducting background checks on job applicants through obtaining criminal records, consumer credit ratings, and school records, more and more employers are using Internet data sources such as Google and Facebook to obtain information about their job applicants, according to Ellen Messing, a partner at Messing, Rudavsky & Weliky in Boston. Although an applicant might think that information posted on social Web sites is private, Messing said the applicant's expectation of privacy either would be diminished or eliminated as soon as personal information is put into the public domain. She warned employers that they may cross a line when accessing these sites, however, especially where the employer uses "trickery" to obtain information about a prospective candidate. Addressing employee privacy within the workplace environment, Eric Barnum, a partner with Schiff Hardin in Atlanta, said employees have no real expectation of privacy in common areas like lobbies and hallways. He said if an employee is having a conversation with a co-worker in a common area, and a supervisor happens to hear that conversation or see some sort of conduct, the employee cannot defend his or her actions by claiming that his or her right to privacy was intruded upon. According to Barnum, employees do have a limited expectation of privacy in the areas of their desks, office, and immediate work. In litigation, such an expectation is examined on a case-by-case basis and is contingent upon the reasonableness of the expectation. There also is a general expectation of privacy in an employee's use of the restroom, and employers need a compelling reason to show why that privacy was invaded. In order to monitor employees' physical location, Lewis Maltby, president of the National Workrights Institute, noted that the use of GPS tracking devices is on the rise, and that some companies have installed such devices on employer-distributed cell phones. While the question of invading the employee's privacy does not really come into play when the employee is on the clock and working, there is potential liability when the employee is off the clock, such as on weekends. He suggested that employers consider instituting a policy prohibiting such monitoring. | 
