The construction industry has a myriad of legal, statutory and regulatory issues to consider. Those working within the construction industry, including contractors, subcontractors, material and product suppliers, and design professionals, have enough on their plate in securing, performing and completing construction projects and then getting paid, that employee issues may not always be a focus. However, construction industry employers must be cognizant of the legal issues affecting their employees.
Ohio’s At-Will Employment Rules
Generally speaking, in Ohio, unless a written contract otherwise specifies, all employees are considered “at will” employees. This means an employee can be discharged or fired, and the terms and conditions of their employment such as pay, hours, and benefits, can prospectively change with or without cause. Of course, the at will nature of an employment relationship is subject to contractual, statutory and regulatory considerations.
For example, a written employment contract can alter the at-will nature of employment. Written employment contracts can include a written employment term, specify the reasons for discharge or reprimand (such as requiring for cause only dismissals), and may also include post-termination restrictive covenants such as non-complete agreements, non-solicitation agreements, and confidentiality and non-disclosure agreements. Written contracts are frequently, although not always, used for management level employees and those employees having access to confidential and proprietary information including trade secrets.
Union Employees & Collective Bargaining Considerations
Collective bargaining agreements for union employees may also alter the nature of the at-will employment relationship. CBAs may also include provisions regulating reasons for discharge and reprimand.
The National Labor Relations Act (NLRA) regulates the interaction between employers and employees, including the right to unionize. The NLRA includes provisions affirming construction workers’ entitlement to engage in collective bargaining and establish or join labor unions, prohibiting employers from interfering with workers’ rights to discuss or coordinate activities related to labor, including online discussions; and, regulating unfair labor practices, such as discrimination or retaliation against unionized workers.
Wage, Overtime, & Recordkeeping Compliance
The Fair Labor Standards Act (“FLSA”) also imposes legal and regulatory requirements. The FLSA establishes standards for minimum wage, overtime pay, recordkeeping, and child labor. The FLSA includes provisions ensuring that construction workers are compensated at least the federal minimum wage for their hours of labor, mandating the provision of overtime pay for work exceeding 40 hours in a workweek and requiring employers to maintain precise records of employees’ worked hours, wages, and other pertinent documentation.
OSHA & Workplace Safety Compliance
Workplace safety considerations are of paramount importance in the construction industry. One of the most significant considerations is the Occupational Safety and Health Act (OSHA). OSHA requires construction firms to provide workplace safety and safeguard employees from potential hazards. Compliance with OSHA mandates include having a safe workplace free from recognized hazards, effective communication by employers of safety standards and requiring comprehensive training for their workforce, record keeping, routine inspections to verify compliance with safety regulations, and regulating non-compliance with OSHA standards with penalties and fines.
The Americans with Disabilities Act (“ADA”), the Family and Medical Leave Act (“FMLA”) and state workers compensation laws often overlap when an employee is injured on the construction job. Reasonable accommodation for disabilities is required by the ADA. Medical leave is required by the FMLA, and workers compensation laws apply to employees injured on the job. An employee with a work-related injury may be eligible for both FMLA and ADA accommodations. The ADA may require an employee to make reasonable accommodation, which might include light duty or modified schedules. The FMLA is separate and does not replace ADA obligations. Requiring FMLA use instead of providing reasonable accommodation may violate the ADA.
Best Practices for Employment Law Compliance
In complying with these statutory requirements, construction employers must balance job protection, medical treatment, and legal compliance, while employees recover from job related injuries. In addition, wrongful discharge claims may arise from an employer taking retaliatory action against an employee for exercising a right guaranteed by the ADA, FMLA or workers compensation laws.
In sum, best practices require construction employers to maintain clear policies and procedures in place with respect to FLSA compliance, OSHA record keeping and training, and for ADA accommodation, FMLA leave, and reporting workers compensation claims.
For more information, or to seek counsel from our Employment practice group, please reach out to request a consultation or call us at 216-696-1422.
