AGC's Human Resource and Labor News - June 15, 2010 / Issue No. 3-10 (Print All Articles)

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New Contract Clause and Posting Requirement for Federal Contractors

The U.S. Department of Labor (DOL) Office of Labor-Management Standards on May 20 issued a final rule implementing Executive Order 13496, which requires federal contracting agencies to include in most contracts a new clause requiring contractors and subcontractors to post notices informing employees about their rights under the National Labor Relations Act ("NLRA").  The rule, which takes effect on June 21, establishes the content of the notice, clarifies flow-down requirements, and sets forth penalties and procedures for noncompliance. It applies only to contracts directly with the federal government and related subcontracts, not to federally assisted contracts made with other nonfederal government entities.

The U.S. Department of Labor (DOL) Office of Labor-Management Standards on May 20 issued a final rule implementing Executive Order 13496, which requires federal contracting agencies to include in most contracts a new clause requiring contractors and subcontractors to post notices informing employees about their rights under the National Labor Relations Act ("NLRA").  The rule, which takes effect on June 21, establishes the content of the notice, clarifies flow-down requirements, and sets forth penalties and procedures for noncompliance. It applies only to contracts directly with the federal government and related subcontracts, not to federally assisted contracts made with other nonfederal government entities.

Several changes were made from the proposed rule issued in August 2009, including many made in response to comments submitted by AGC.  For example, DOL adopted AGC's recommendation to abandon the requirement that government contracts include the entire text of the employee notice - which is quite lengthy - and to allow incorporation by reference.  DOL also expanded the description of unlawful union conduct contained in the text of the employee notice, in response to objections raised by AGC and others that the notice contained an imbalanced list focused on employer misconduct. 

Furthermore, DOL favorably responded to AGC's concerns that the proposed rule appeared to give DOL improper authority to enforce compliance with the NLRA - which the is role of the National Labor Relations Board - and authorized overly severe sanctions for even minor violations.  While it did not change the text of the final rule on these matters, DOL explained in the preamble that "contractors will not receive harsh sanctions for inadvertent or unintentional violations of the rule."  The preamble also "assures the contractor community that [DOL] cannot, nor will it, attempt to enforce the substantive provisions of the notice." 

The executive order and rule exempt prime contracts for purchases below the simplified acquisition threshold (currently $100,000).  However, the proposed rule did not exempt subcontracts below the threshold, and DOL declined to change this in the final rule, despite AGC's protests.  A subcontract that is below the threshold is covered by the rule, provided that it is "necessary to the performance" of a prime contract above the threshold.  The final rule does, however, add a de minimis standard exempting subcontracts with a value of $10,000 or less.  The rule requires inclusion of the new clause in nonexempt contracts and subcontracts at all tiers, not just first-tier subcontracts, and provides that DOL may require a contractor to enforce subcontractor compliance.  The preamble explains that, while a contractor may not "turn a blind eye toward noncompliance of its subcontractors," it is only required to seek compliance and will not be liable if the subcontractor still fails to comply.

The rule contains various directives about the manner and location of the posting.  If the contractor posts notices to employees physically, then it must also physically post the NLRA notice.  The posting must be made in "conspicuous places," including areas (1) where other notices about employment terms and conditions are posted and (2) where employees covered by the NLRA engage in activities related to performance of the government contract.  A noteworthy change for many AGC members in the final rule requires contractors to provide the notice in other languages "where a significant portion of a contractor's workforce is not proficient in English."  The rule does not explain what "significant portion" means, but the standard is adopted from rules implementing the Family and Medical Leave Act.  The rule states that DOL will provide an official poster in English and various other languages on its website at www.olms.dol.gov, but, as of publication of this article, only English posters were provided, available in two formats via links at http://www.dol.gov/olms/regs/compliance/EO13496.htm.

If the contractor "customarily" posts notices to employees electronically, then it must also post the NLRA notice electronically by prominently displaying on any website customarily used for employee notices about terms and conditions of employment a link that reads ''Important Notice about Employee Rights to Organize and Bargain Collectively with Their Employers'' and links to the DOL Web page where the full text of the poster is found.  Again, foreign languages must also be used if a significant portion of the workforce is not English literate, and DOL will provide translations.

Contractors should promptly advise appropriate staff to begin to look for the new contract clause in federal contracts and subcontracts resulting from solicitations issued on or after June 21, and to prepare for compliance.  DOL's Office of Federal Contract Compliance (OFCCP), which is tasked with conducting compliance evaluations under this rule, has stated in recent months that its enforcement efforts will target the construction industry.  (Click here and here to learn more.)  AGC will meet with OFCCP on May 24 to discuss this and other initiatives.

For more information, contact Denise Gold, Associate General Counsel, at (708) 837-5326 or goldd@agc.org.


Court Upholds Large Arbitration Award for Unionís Breach of Most-Favored Nation Clause

The U.S. Court of Appeals for the Seventh Circuit (Ill., Ind., Wis.) has upheld an arbitration award against the Chicago Regional Council of Carpenters (CRCC) for violating a most-favored nation (MFN) clause resulting in substantial damages to a residential and commercial roofing contractor.

The U.S. Court of Appeals for the Seventh Circuit (Ill., Ind., Wis.) has upheld an arbitration award against the Chicago Regional Council of Carpenters (CRCC) for violating a most-favored nation (MFN) clause resulting in substantial damages to a residential and commercial roofing contractor.  

The contractor, Prate Installations, has been a union contractor since 1983.  For the past several years, though, the company and the CRCC have had an acrimonious relationship with several disputes.  The present dispute arose when Prate filed a grievance under the multiemployer collective bargaining agreement (CBA) to which it was signatory claiming that the union violated the CBA's MFN clause by requiring Prate and others to pay wages on an hourly basis while allowing competitors to pay on a piecework basis.  An arbitrator agreed with Prate and awarded it over $9.4 million dollars in damages for violations occurring up to the date of the award.  The arbitrator also allowed Prate to pay on a piecework basis until the union began complying with the MFN clause, and he awarded Prate reasonable attorneys' fees up to $2 million.

After CRCC advised Prate that it did not intend to comply with the arbitration award, Prate filed a lawsuit under §301 of the Labor Management Relations Act in federal district court.  The district court confirmed the award of damages for violations up to the expiration of the CBA governing the dispute, but it reduced the amount of the award to $5.1 million to exclude violations occurring after CBA expiration and vacated the part of the award allowing Prate to pay on a piecework basis after CBA expiration.  

The court of appeals affirmed, holding that the arbitrator's finding that CRCC violated the MFN clause was a permissible interpretation of the CBA and that his award of attorney's fees was also permissible, but that the district court properly struck the portion of the arbitrator's award that extended beyond the CBA expiration.

For the full text of the court opinion, click here.  For more background on the parties' dispute from the contractor's point of view, click here.


New Health Care Law Requires Accommodations for Nursing Mothers; May Pose Challenge for Construction Industry

A provision of the Patient Protection and Affordable Care Act of 2010 (PPACA) requiring employers to provide a private location for nursing mothers to express breast milk may have flown under the radar for many employers.  The requirement amends Section 7 of the Fair Labor Standards Act (FLSA) and may pose challenges for many construction companies with nursing mothers working on a construction jobsite.  While many portions of the PPACA have specific effective dates, this portion does not and employers must comply with the requirement immediately.

A provision of the Patient Protection and Affordable Care Act of 2010 (PPACA) requiring employers to provide a private location for nursing mothers to express breast milk may have flown under the radar for many employers.  The requirement amends Section 7 of the Fair Labor Standards Act (FLSA) and may pose challenges for many construction companies with nursing mothers working on a construction jobsite.  While many portions of the PPACA have specific effective dates, this portion does not and employers must comply with the requirement immediately.

According to the new law, which was enacted on March 23, 2010, employers are now required to provide "reasonable break time" in a "suitable place, other than a bathroom" each time a nursing mother needs to express breast milk for up to one year after the birth of a child.  The location provided for the worker must be a private place "free from intrusion from co-workers and the public."  Regulations have not yet been issued defining what is considered a "reasonable" break time or limit to the number of breaks that should be taken during the work day.  All employers are required to comply with the requirements of this provision.  However, employers with fewer than 50 employees who are able to prove that complying with the requirements would "impose an undue hardship" by causing the employer significant difficulty in relation to its size, financial resources, or nature or structure of the business may be exempt. It is unclear whether a company with a nursing mother working on a construction jobsite would fall into this category.

Employers are not required to compensate nursing mothers for time taken to express milk, but, under the FLSA, short breaks taken  by employees are generally considered time for which an employee must be paid.  While this new exception is given for nursing mothers, employers are still required to pay nursing mothers for short breaks otherwise given to all employees.   In addition, employers who generally provide short, paid breaks for smoking or other purposes should use caution in administering the new requirements for nursing mothers, since possible claims of discrimination may arise.

Employers are advised to check state laws regarding the necessary requirements for nursing mothers, particularly because this new federal mandate does not preempt state laws with more generous provisions.  Supervisors should also be trained on the requirements of the law and new company policy, and employee handbooks and policy manuals should be updated to identify this new benefit for employees.


IRS Asks Employers to Answer 401 (k) Questionnaire; Employers Should Proceed With Caution

In an effort to increase voluntary compliance, the Internal Revenue Service (IRS) recently announced that it began randomly questioning 1,200 sponsors of 401(k) plans as a part of a compliance check program administered by its Employee Plans Compliance Unit.  Sponsors of the selected plans were expected to receive a letter that was mailed the week of May 17, 2010, describing the program and directing them to a secure website where they will have 90 days to complete an online compliance questionnaire.  The IRS says it will use the information gathered for education, outreach and enforcement actions.

In an effort to increase voluntary compliance, the Internal Revenue Service (IRS) recently announced that it began randomly questioning 1,200 sponsors of 401(k) plans as a part of a compliance check program administered by its Employee Plans Compliance Unit.  Sponsors of the selected plans were expected to receive a letter that was mailed the week of May 17, 2010, describing the program and directing them to a secure website where they will have 90 days to complete an online compliance questionnaire.  The IRS says it will use the information gathered for education, outreach and enforcement actions.

The online questionnaire will collect information on the following topics:

  • demographics,
  • plan participation,
  • plan contributions (both employer and employee),
  • top-heavy and non-discrimination rules,
  • distributions and plan loans,
  • other plan operations,
  • automatic contribution arrangements,
  • designated Roth features,
  • IRS voluntary correction/compliance programs, and plan administration.

According to the IRS, completing the questionnaire is voluntary and is not an audit or investigation; however, further enforcement action from the IRS, including a full audit of the plan, should be expected if a sponsor chooses not to respond to the request.

Plan sponsors who receive such a request are encouraged to exercise caution when completing the questionnaire by having someone who is knowledgeable about plan compliance requirements complete it, and have a tax or employment law attorney licensed to practice in the state assist with correcting or addressing any compliance issues that may be discovered as a result of the questionnaire.


DOL Updates Web-based Compliance Tool to Help Employers Understand and Comply with Laws

Recently, the U. S. Department of Labor (DOL) announced the addition of new and revised Employment Laws Assistance for Workers and Small Businesses (elaws Advisors) used to help employers and employees understand federal employment laws.  According to Labor Secretary Hilda L. Solis, "the new online advisor harnesses technology to help take the mystery out of the new rules."  The new tools address H-1B classified workers, union elections, disability nondiscrimination laws and veterans' assistance. 

Recently, the U. S. Department of Labor (DOL) announced the addition of new and revised Employment Laws Assistance for Workers and Small Businesses (elaws Advisors) used to help employers and employees understand federal employment laws.  According to Labor Secretary Hilda L. Solis, "the new online advisor harnesses technology to help take the mystery out of the new rules."  The new tools address H-1B classified workers, union elections, disability nondiscrimination laws and veterans' assistance. 

For employers, the H-1B Advisor is designed to help employers determine whether a worker fulfills the requirements of the visa program by answering questions relevant to specific H-1B classified workers.  It also outlines notification requirements, monetary issues, worksite issues, recordkeeping, worker protections and additional requirements for employers deemed by DOL to be H1-B dependent.    Each year, 65,000 H-1B visas are issued to highly skilled, college-educated, temporary workers for a maximum of six years.  The Disability Nondiscrimination Law Advisor is designed to help employers determine which federal disability nondiscrimination laws apply to their business.  The Advisor also helps federal and federally assisted contractors understand their responsibilities under these laws.

For employees, the OLMS Union Elections Advisor describes the rights of union members and candidates in union officer elections, and the responsibilities of union officers and others involved in conducting elections, as overseen by the Office of Labor Management Standards, while the updated e-VETS Resource Advisor assists veterans, service members and their families and caregivers to quickly and easily navigate through web-based information on a variety of topics including education, job training and employment. 

Elaws Advisors do not exist for every DOL law or regulation.  For those that do exist, each advisor simulates the interaction you might have with an employment law expert by asking questions and providing answers based on the responses given.  To access all of the available elaws Advisors, visit the elaws website at www.dol.gov/elaws.


AGC Represents Contractors at Wage and Hour Division Stakeholder Forum

On Friday, May 21, 2010, the Wage and Hour Division (WHD) of the U.S. Department of Labor (DOL) held a Stakeholder Forum to discuss some of the issues and regulations that fall under their purview.  AGC attended the event and participated in sessions that addressed topics with a potential effect on the construction industry.  The Wage and Hour Division is using the theme of "Plan, Prevent, and Protect" to become a more effective enforcement agency.  Success will be measured by baseline investigations in industries where they believe violations are most likely to occur.  Construction is listed as one of the top industries on which they will focus.   A WHD official expressed that while there are no numerical targets for enforcement, results will be measured on an ongoing basis.

On Friday, May 21, 2010, the Wage and Hour Division (WHD) of the U.S. Department of Labor (DOL) held a Stakeholder Forum to discuss some of the issues and regulations that fall under their purview.  AGC attended the event and participated in sessions that addressed topics with a potential effect on the construction industry.  The Wage and Hour Division is using the theme of "Plan, Prevent, and Protect" to become a more effective enforcement agency.  Success will be measured by baseline investigations in industries where they believe violations are most likely to occur.  Construction is listed as one of the top industries on which they will focus.   A WHD official expressed that while there are no numerical targets for enforcement, results will be measured on an ongoing basis.

The Deputy Administrator, Nancy J. Leppink, began the plenary session by giving an overview of the day as well as the mission of the department.   The overall theme of her remarks echoed many others at DOL under the Obama Administration, including labor secretary Hilda Solis, that enforcement is their top priority.  Driving home the point, she recognized the agency's accomplishments of hiring 250 new investigators in 2009, with 100 more new hires expected in 2010.  She also acknowledged the agency's new public service campaign, "We Can Help," which educates workers on their workplace rights while encouraging them to report employers that are violating those rights, and the new focus on the use of administrative interpretations instead of opinion letters, which she says is a "better use of agency resources" by addressing issues more broadly.

Prevailing Wages & Wage Determinations

Branch Chief of Construction Wage Determinations, Vanessa Shaw-Jennings, shared WHD's new goal to survey every state at least once every three years in an effort to improve the quality and timeliness of wage determinations as regulated by the Davis-Bacon and Related Acts.  Some ways that WHD is working to accomplish this goal is by collecting and reviewing certified payrolls for highway work in order to obtain accurate and up-to-date wage determinations.  In addition, WHD will work more with state agencies to gather prevailing wage rates more frequently for building and highway projects.  Currently, the adoption of prevailing wage rates from state agencies is used for highway projects only. 

Keeping in line with the agency's focus on enforcement, Clarence Strain and Joseph Monticone of the government contracts enforcement and policy division discussed project investigations, particularly investigations of projects funded in-whole or in-part by the American Recovery and Reinvestment Act of 2009.  According to WHD data, there were four patterns of violations identified among contractors during those investigations including underpayments, journeymen-apprentice ratio violations, independent contractor misuse, and falsified certified payroll records.

Enforcement goals for 2011 include more directed Davis-Bacon compliance investigations, prioritizing Davis-Bacon complaints and conducting prevailing wage conferences, depending on enforcement results and requests.

Worker Misclassification

As part of the record-keeping requirements mentioned in DOL's 2010 Regulatory Agenda, WHD is considering a proposed rule that will require employers to notify workers of their classification status and provide those workers with a summary of the analysis that led to the classification decision.

In addition, Jennifer Marion, special assistant to the deputy administrator, discussed WHD's misclassification initiative, which emphasizes the detection of misclassified employees as independent contractors and involves coordinating with other DOL agencies and the U.S. Department of Treasury.  Of particular significance, she stated that all investigations related to the Fair Labor Standards Act will soon begin with an analysis of whether or not the worker has been properly classified as an employee.  For the remainder of this year and beginning in 2011, Ms. Marion described the two main worker misclassification initiatives: janitorial services and residential construction.  She also provided information on an upcoming "state forum," where DOL will meet with many state agencies in order to learn from their experiences of enforcing worker misclassification issues. 

AGC has several resources available to help members comply with federal prevailing wage laws as well as worker misclassification issues.  For prevailing wage compliance, such resources include AGC's three-part webinar series on the Davis-Bacon & Related Acts and AGC's Davis-Bacon Manual on Labor Standards for Federal and Federally-Assisted Construction Contracts, which is written in a contractor-friendly manner and will be available in a revised format this fall.  DOL's Prevailing Wage Resource Book is a good tool to use along with the AGC manual.  For assistance with worker misclassification issues, AGC's webinar series, "Advanced Issues about Worker Misclassifications: What Every Contractor Needs to Know" will help to guide employers through the process of correctly identifying workers as employees or independent contractors as well as exempt or non-exempt.  This webinar will be available mid-June in the AGC Bookstore.

For more information, contact Tamika C. Carter at (703) 837-5382 or cartert@agc.org.


Number of Green-Zone Multiemployer Pension Plans Up From 2009 but Still Down From 2008

The number of multiemployer pension plans in the green zone as of January 1, 2010, was significantly higher than that a year earlier, according to The Segal Company's recently released Survey of Calendar-Year Plans' 2010 Zone Status.  Fifty-four percent of the 230 calendar-year plans surveyed -- which are Segal clients from a variety of industries – are certifies in the green zone for 2010.  This is a 15 percent increase from the 39 percent found last year, but still well below the 83 percent found in 2008.  The survey found little change in the percentage red-zone plans, which is now much higher than the percentage of yellow-zone plans.

The number of multiemployer pension plans in the green zone as of January 1, 2010, was significantly higher than that a year earlier, according to The Segal Company's recently released Survey of Calendar-Year Plans' 2010 Zone Status.  Fifty-four percent of the 230 calendar-year plans surveyed -- which are Segal clients from a variety of industries – are certifies in the green zone for 2010.  This is a 15 percent increase from the 39 percent found last year, but still well below the 83 percent found in 2008.  The survey found little change in the percentage red-zone plans, which is now much higher than the percentage of yellow-zone plans.

The survey included 121 plans in the construction industry.  Of those, 59 percent were in the green zone at the start of 2010, 20 percent were in the yellow zone, and 21 percent were in the red zone.  This compares to 43 percent, 33 percent, and 24 percent in 2009, respectively.

The survey also found that the average funded percentage for all calendar-year plans surveyed was 86 percent as of January 1, 2010, an increase of only one percent from a year earlier and significantly lower than the 97 percent found in 2008.

Just over 100 of the surveyed plans -- about 75 percent of those eligible – exercised the option provided by the Worker, Retiree and Employer Recovery Act of 2008 to freeze the plan’s 2009 zone status at its 2008 level. Nearly 30 of those plans (over 25 percent) are in the green zone for 2010.

For an abstract of the report, click here.  To download the complete report (registration required), click here

For a list of other recent pension plan funding surveys compiled by the International Foundation of Employee Benefit Plans, click here.

For information on recent AGC’s efforts to seek funding relief in Congress, click here.  To help in the effort by contacting your congressional delegation for support, click here.


IRS Releases Updated HIRE Act FAQs and Revised W-2 & W-3 Forms for Employers

In response to the Hiring Incentives to Restore Employment (HIRE) Act, a new law created to encourage employers to hire workers who were previously unemployed for at least 60 days immediately prior to hiring, the Internal Revenue Service (IRS) has issued revised 2010 W-2 and W-3 forms, along with an updated list of frequently asked questions (FAQs) for employers.

In response to the Hiring Incentives to Restore Employment (HIRE) Act, a new law created to encourage employers to hire workers who were previously unemployed for at least 60 days immediately prior to hiring, the Internal Revenue Service (IRS) has issued revised 2010 W-2 and W-3 forms, along with an updated list of frequently asked questions (FAQs) for employers.

The revised 2010 Form W-2, Wage and Tax Statement, now includes instructions for reporting exempt wages and tips for qualified employees under the HIRE Act.  Data from Form W-2 is then reported on the revised 2010 Form W-3, Transmittal of Wage and Tax Statements.  Detailed instructions for completing both forms can be found on the IRS website.

In addition to updating the forms, the IRS has also updated its list of HIRE Act FAQs for employers, with example scenarios.  The FAQs define qualified employers, qualified employees, and answers questions on claiming the payroll exemption.  One clarification given to employers in the FAQs is that the payroll tax exemption is based on when wages are paid to the employee, not earned.  For example, if a qualified employee was paid on March 19, 2010, the wages for that two-week period would qualify for the payroll tax exemption.  This is the case even though the payroll tax exemption only applies to wages paid after March 18, 2010, the date of enactment, and before January 1, 2011.  The FAQs also confirm that there is a deadline for the employer to obtain the signed affidavit (Form W-11) from the employee.  The employer must receive the signed affidavit before the company files an employment tax return applying the payroll tax exemption. 

For more information on the HIRE Act, including an explanation of the tax holiday and additional business tax credit available to employers and the forms and requirements necessary to claim the credits, read AGC's article, "Tax Incentives Expected to Encourage Hiring; Seasonal Hires Qualify."


Registration Open for HR Professionals Conference and Training and Development Conference

Registration is now open for AGC's 2010 HR Professionals Conference and Training & Development (T&D) Conference.   For 2010, the conferences will be co-located in Scottsdale, Arizona, with the T&D Conference beginning on the morning of October 18, lasting through mid-day on October 19, and the HR Professionals Conference beginning on the morning of October 19, and concluding at noon on October 20. There will be one joint session on the morning of October 19.

Registration is now open for AGC's 2010 HR Professionals Conference and Training & Development (T&D) Conference.   For 2010, the conferences will be co-located in Scottsdale, Arizona, with the T&D Conference beginning on the morning of October 18, lasting through mid-day on October 19, and the HR Professionals Conference beginning on the morning of October 19, and concluding at noon on October 20. There will be one joint session on the morning of October 19.

Each conference offers unique opportunities for HR, training and workforce development professionals in the construction industry.  Sessions for the HR Professionals Conference address issues related to drug testing and substance abuse management, conducting workplace investigations, analyzing the risks and benefits of modern technology in the workplace, using performance management to enhance company and individual growth, utilizing a variety of compensation best-practices in a rebounding economy, and more. 

The T&D Conference will offer sessions on benefiting from the challenges of generational diversity, linking performance management to employee learning, implementing project team training, building partnerships with academic institutions, giving high-impact presentations, and more. 

See full session descriptions, schedule, registration, and hotel information at www.agc.org/hr_td

Don't miss out on the early-bird discount; register online today.

 


AGC Provides Training to Help Contractors Avoid Worker Misclassification Liability

Several new laws and enforcement initiatives pose challenges for employers seeking to control costs in a difficult economy.   While many employers rely on independent contractors and exempt employees as a legitimate method of minimizing human capital costs, many circumstances must be considered when classifying workers as independent contractors or exempt employees to avoid legal pitfalls.  AGC's two-part webinar series, "Worker Misclassification: What Every Contractor Needs to Know," provided training for contractors on these topics and is now available for purchase in AGC's online bookstore.

Several new laws and enforcement initiatives pose challenges for employers seeking to control costs in a difficult economy.   While many employers rely on independent contractors and exempt employees as a legitimate method of minimizing human capital costs, many circumstances must be considered when classifying workers as independent contractors or exempt employees to avoid legal pitfalls.  AGC's two-part webinar series, "Worker Misclassification: What Every Contractor Needs to Know," provided training for contractors on these topics and is now available for purchase in AGC's online bookstore. 

The first part of the series focused solely on misclassifying employees as independent contractors.  HR consultant, Kathy Albarado of Helios HR partnered with tax consultant Laurence C. Rubin of Aronson & Company and employment law attorney David Whitlock of Elarbee Thompson LLP to help construction employers determine the appropriate means of identifying independent contractors from the perspectives of both the Internal Revenue Service and the U.S. Department of Labor.   Specific attention was given to the various tests that are used to make such determinations, common "red flags" that employers should look out for, enforcement initiatives, consequences of misclassifications, and the steps needed to correct any misclassifications that are identified during a self-audit. 

Kathy Albarado again partnered with employment law attorney and Fair Labor Standards Act (FLSA) expert Tami Earnhart of Ice Miller LLP for the second part of the series on misclassifying employees as exempt under the FLSA rather than non-exempt, and shared with contractors the top three FLSA concerns for construction contractors.  Each of the FLSA exemptions (i.e. executive, administrative, professional, learned professional, sales, computer-related and highly compensated workers) was also discussed in detail with a specific focus given to "grey areas" that exist in the construction industry, including the classification concerns for field supervisors and project superintendents.  Some other areas discussed include waiting, travel, on-call and training times, meal and rest periods, and time spent receiving medical attention or complaining.

Both sessions provide modern examples and court cases related to the construction industry and offer suggestions for "best practices," including tips for conducting self-audits.


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