AGC's Human Resource and Labor News - May 17, 2011 / Issue No. 3-11 (Print All Articles)

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The OFCCP Proposes to Increase the Obligations of Direct Federal Contractors and Subcontractors Regarding Veterans

The Office of Federal Contractor Compliance Programs (OFCCP), the agency that administers various affirmative action laws applicable to federal contractors, published proposed regulations on April 26, 2011, that, if implemented, will significantly increase contractors' obligations as they relate to protected veterans.

The Office of Federal Contractor Compliance Programs (OFCCP), the agency that administers various affirmative action laws applicable to federal contractors, published proposed regulations on April 26, 2011, that, if implemented, will significantly increase contractors' obligations as they relate to protected veterans. 

As with the current regulations, the proposed regulations will apply to companies with a direct contract (as opposed to federally-assisted contracts) with the federal government entered into, on or after December 1, 2003 and valued at $100,000 or more, or with a subcontract of the same value with a direct federal contractor that is necessary for the completion of a federal contract.  Companies with covered contracts should become familiar with the proposed regulations and consider the effect the changes will have on their business.  If a contractor wishes to express a concern related to the proposed regulations, the OFCCP is accepting comments until June 27, 2011 (visit the federal rulemaking portal for instructions on submitting comments).

As expected, the proposed regulations expand the obligations of federal contractors toward veterans.  Under the proposed regulations, direct federal contractors will be required to track the veteran status of applicants (in addition to new hires) and, if the contractor has 50 or more employees, establish hiring goals for protected veterans.  The proposed regulations also require federal contractors with 50 or more employees to document employment decisions affecting protected veterans thoroughly and to retain such records for an expanded period of time.

In addition, covered federal contractors will be required to establish at least three "linkage agreements" with certain veterans organizations (which has been a focus of the OFCCP in recent audits).  The regulations also implement mandatory obligations for internal communications about the contractor's affirmative action policy.  Each of these proposed changes will increase the affirmative action burdens of federal contractors and the cost of doing business with the federal government.

Applicant Tracking

One of the most significant changes in the proposed regulations relate to applicant tracking and data gathering.  Currently, covered federal contractors are not required to track the veteran status of applicants, but must invite new employees to identify their specific veteran status after the individual accepts an offer of employment.  Under the proposed regulations, covered federal contractors (apparently without regard to number of employees) will be required to invite all applicants to identify voluntarily whether they are a protected veteran generally (without asking the applicants to identify the specific protected veteran category into which they fall).  This will require changes to contractors' current applicant questionnaires, which likely only cover gender and race/ethnicity.  Federal contractors will still be required to invite new employees to identify voluntarily the specific veteran category into which they fall.

In addition, covered federal contractors with 50 or more employees will be required under the proposed regulations to maintain certain data related to their applicants and new hires.  Specifically, the federal contractor must maintain the following data:

  • The number of referrals of protected veterans received from the applicable veterans or unemployment office (presumably, even if the individuals are not qualified);
  • The total number of referrals (without regard to whether such referrals are protected veterans) received from the veterans or unemployment office (again, presumably even if not qualified);
  • The number of applicants who identified themselves as protected veterans (or who are otherwise known to be protected veterans);
  • The total number of job openings and total number of jobs filled;
  • The ratio of jobs filled to job openings;
  • The total number of applicants for all jobs;
  • The ratio of protected veteran applicants to all applicants;
  • The number of protected veteran applicants hired;
  • The total number of applicants hired; and
  • The ratio of protected veterans hired to all hires.

The requirement to maintain this information will result in additional applicant tracking logs beyond those currently required.

Hiring Benchmarks

Another significant addition in the proposed regulations is the first-time requirement for covered federal contractors with 50 or more employees to establish benchmarks for hiring.  Currently, federal contractors are not required to establish numerical benchmarks or goals related to veterans.  If these proposed regulations are adopted, benchmarks will need to be established on an annual basis, which will increase the cost of the preparation of an affirmative action plan for veterans.  Covered federal contractors will be required to consider the following information when setting benchmarks:

  • The average percentage over the past three years of veterans in the civilian labor force in the state where the contractor is located.  These percentages will be calculated by the Bureau of Labor Statistics and published on the OFCCP website.
  • The number of veterans, over the previous four quarters, who were participants in the unemployment or veterans service in the state where the contractor is located.  These percentages will be tabulated by the Veterans' Employment and Training Service and published on the OFCCP website.
  • The ratios (described above) calculated by the contractor for the previous year.
  • The contractor's recent assessment of the effectiveness of its outreach and recruitment efforts.
  • Any other factors that affect the availability of qualified protected veterans.

Contractors will use these benchmarks to evaluate the effectiveness of their outreach and recruitment efforts, some of the requirement for which are discussed below.

Documents showing the calculation of the benchmark must be retained for five years. This effectively expands the scope of any OFCCP audit related to veterans, which has historically been a two year period, to a period of five years.

Records of Employment Decisions and Review of Qualifications

Covered contractors with more than 50 employees will also be required to maintain detailed records about employment decisions related to covered veterans and their review of position qualifications.  For employment decisions, the proposed regulations require that, at a minimum, federal contractors maintain the following information:

  • Each position or training program for which the employer considered an applicant or current employee who is a covered veteran;
  • A statement regarding the reason the employer rejected the individual for the position or training and any accommodation considered; and
  • A description of any accommodation provided to a disabled veteran who is selected for a position or training.

The records related to the reason the employer rejected a covered veteran must be made available to the applicant or employee upon request.

In addition to maintaining records related to employment decisions, the proposed regulations require that covered contractors maintain specific records related to an annual review of their position qualifications, including the methods used to complete the annual review, the results of the annual review, and any actions taken in response.  If these regulations are implemented, contractors will need to be cautious about creating a document that might be interpreted as an admission of discrimination.

External Outreach Efforts and Linkage Agreements

Under the proposed regulations, covered federal contractors will be required to establish what is being referred to as "linkage agreements." Linkage agreements are defined as agreements describing the connection between the contractor and certain recruitment sources.  Contractors must establish these agreements with the Local Veterans' Employment Representative in the local unemployment office and at least one of the following:

  • The Department of Veterans Affairs Regional Office;
  • The veterans' counselors and coordinators on college campuses;
  • The service officers of the national veterans' groups active in the area;
  • Local veterans' groups and veterans' service centers; and
  • The Department of Defense Transition Assistance Program.

The contractor must also establish a linkage agreement with one or more sources listed as a veterans' service organization on the Employer Resources section of the National Resources Directory.

Beyond these mandatory external outreach requirements, the proposed regulations contain suggested external outreach requirements, such as holding formal briefing sessions with recruitment sources, incorporating special efforts to reach students who are protected veterans, using protected veterans in recruitment and community activities, and considering veteran applicants for all available positions, even those to which they did not apply.

Internal Dissemination and Training

Noting the value of internal support, the proposed regulations also require that contractors undertake the following internal steps:

  • Include their affirmative action policy in their policy manuals;
  • Inform all employees and applicants of their commitment to affirmative action, including annual meetings with employees to discuss their affirmative action policies, explain the responsibilities under these policies, and identify opportunities for advancement;
  • Conduct meetings with executive, management and supervisory personnel to explain the intent of the policy and the individual responsibilities for implementation;
  • Discuss the policy thoroughly in employee orientation and management training; and
  • Meet with any union representing its workforce to inform the union of the contractor's policy and request the union's cooperation.

As with the external outreach provisions, the proposed regulations also encourage additional internal efforts.  Furthermore, the proposed regulations require that contractors train all personnel involved in recruitment, screening, selection, promotion, discipline, and related processes.  The training program must include the benefits of employing protected veterans, appropriate sensitivity toward protected veterans, and the legal obligations toward protected veterans (including disabled veterans).  The contractor will be requirement to maintain records documenting the subject matter covered, who conducted the training, who received the training, and when the training took place.

Evaluation of Recruitment and Outreach Efforts

The proposed regulations require that the covered federal contractors document an annual evaluation of the effectiveness of these and other non-mandatory outreach and recruitment efforts undertaken, including the minimum criteria it used and the contractor's conclusion as to whether the effort was effective.  This evaluation must include data collected during the current and two preceding years.  If the evaluation concludes that the efforts were not effective, the contractor must identify and implement alternative efforts.

All documents related to linkage agreements and other outreach efforts, along with its evaluation of such efforts, must be kept by a covered federal contractor for five years.  This retention period exceeds the record retention requirements for other personnel or employment records by three or four years (depending on the size of a contractor's workforce and the value of its contracts) and, as noted above, has the effect of expanding the scope of any OFCCP audit to a period of five years.

While these regulations are only proposed at this point, federal contractors should be familiar with their requirements.  Even if the proposed regulations are modified in the future, they demonstrate the OFCCP's proactive efforts to address the unemployment rates of veterans in a more meaningful way than the current regulations.  We will likely see many of the concepts implemented, even before the OFCCP issues final regulations.  We also anticipate similar proposals in upcoming regulations related to affirmative action for individuals with disabilities.

Editor's note:  This article was written by guest author Tami Earnhart.  Ms. Earnhart is a partner in Ice Miller's Labor and Employment Group.  She represents employers in all aspects of employment and labor law, including discrimination and other litigation, claims filed with administrative agencies, audits by administrative agencies, and labor arbitrations.  She helps employers avoid employment disputes, when possible, and advises companies in making personnel decisions and creating policies in compliance with state and federal laws, including affirmative action policies and programs.  She is also a contributing author of AGC's Affirmative Action Manual for Construction and has served as a speaker in AGC audio conferences and webinars on employment law matters.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.


AGC Provides Training to Federal Construction Contractors on OFCCP Affirmative Action Requirements

On April 7, 2011, AGC completed a webinar that provided compliance assistance training and best practices for federal and federally-assisted construction contractors governed by the requirements of the U.S. Department of Labor’s Office of Contract Compliance Programs (OFCCP) – the federal agency responsible for ensuring that those who do business with the federal government take affirmative action and refrain from unlawful discrimination.

On April 7, 2011, AGC completed a webinar that provided compliance assistance training and best practices for federal and federally-assisted construction contractors governed by the requirements of the U.S. Department of Labor’s Office of Contract Compliance Programs (OFCCP) – the federal agency responsible for ensuring that those who do business with the federal government take affirmative action and refrain from unlawful discrimination.

The two-day webinar helped many current and future federal construction contractors by providing information necessary to understand the specific requirements of OFCCP in a contractor-friendly manner.

The event was moderated by Marian Enriquez, corporate compliance and diversity representative for AGC member company, Sundt Construction, Inc.  Gilberto Garcia, OFCCP’s branch chief of enforcement, presented on the first day of the webinar along with OFCCP’s branch chief of planning and program development, Margaret Kraak.  Together, they educated participants about the laws regulated by OFCCP, the 16 affirmative action steps, and what to expect during a compliance evaluation.

On day two, David Fortney, a seasoned labor and employment lawyer with Fortney & Scott, LLC, and Naomi Hackenberg of WorkPlace HR, LLC, an HR consulting firm specializing in equal employment opportunity and affirmative action matters for federal contractors, delivered practical guidelines, compliance assistance tips, and safeguards for employers to consider when faced with an OFCCP compliance evaluation.

The webinar was pre-approved to offer four general recertification credits by the HR Certification Institute (HRCI), the internationally recognized leader in human resource certification.

Visit the AGC Bookstore to purchase a download of the webinar to view on demand.  For more information on complying with the requirements of OFCCP, visit AGC’s Labor & HR Topical Resources web page.


Employment Law Enforcement Efforts Focus on Inter- and Intra-Agency Collaboration

The Obama administration has focused heavily on the enforcement of employment laws by government agencies across the board, and now, new measures are being taken to allow various agencies and sub-agencies to collaborate on their independent enforcement directives.  Employers are encouraged to prepare now or possibly face tough penalties.

The Obama administration has focused heavily on the enforcement of employment laws by government agencies across the board, and now, new measures are being taken to allow various agencies and sub-agencies to collaborate on their independent enforcement directives.  Employers are encouraged to prepare now or possibly face tough penalties.

The U.S. Department of Labor (DOL), which includes the Wage and Hour Division (WHD), the Office of Federal Contract Compliance Programs (OFCCP), and the Occupational Safety and Health Administration (OSHA), has entered into an inter-agency Memorandum of Understanding (MOU) with the Immigration and Customs Enforcement (ICE) division of the U.S. Department of Homeland Security concerning enforcement activities at worksites.  The purpose of the MOU is to clarify the ways in which the agencies will work together to advance their directives and reduce duplication of efforts.   Through the MOU, ICE has agreed to refrain from engaging in civil worksite enforcement at a worksite with an existing DOL investigation.  However, there are exceptions where both agencies can perform investigations at the same time if it is determined necessary by the director of ICE, secretary of Homeland Security or by an officer of DOL.  The MOU specifically states that ICE and DOL agree to create a means in which to exchange information from their respective investigations.
 
The MOU explains that in most circumstances where an employer is subject to a DOL investigation regarding minimum wage, FMLA, work-related injuries, discrimination and/or retaliation, the employer will not be subject to an ICE civil audit at the same time.  The non-investigating agency, however, will be able to perform an independent audit after the initial agency completes its audit, and both agencies will share the results of their findings. 

AGC recently met with WHD Acting Director Nancy Leppink, who is responsible for enforcing such laws as the Fair Labor Standards Act, the Family & Medical Leave Act, the Davis-Bacon Act, and other laws that govern how wages are paid to workers.  Ms. Leppink shared with AGC the division’s efforts to form an intra-agency coalition with OFCCP, the division of DOL that enforces affirmative action and equal employment opportunity requirements of businesses that work with the federal government.  During the meeting, AGC explained that its members want to be in compliance with the law and asked Ms. Leppink for additional guidance and in-depth training for the often complicated and confusing wage laws to which construction contractors must adhere.

These initiatives make it clear that enforcement is still a top priority, and there are no signs of slowing.  Employers are encouraged to review wage and hour policies and practices as well as immigration policies and practices, including I-9 records, to ensure compliance before an ICE or DOL investigation is initiated. 

The 2011 HR Professionals Conference and corresponding Federal Contracting Compliance Construction HR Workshop will feature sessions by two HR professionals of AGC member companies who will share their own experiences of both a WHD audit and an OFCCP audit.  In addition, a representative of the ICE will provide a hands-on workshop to train employers on ways to minimize unauthorized employment by the use of fraudulent documents.


Social Security Administration Resumes Sending No-Match Letters

On April 6, 2011, the Social Security Administration (SSA) resumed sending "Decentralized Correspondence" letters, commonly referred to as "no-match" letters, to individuals and employers notifying them of discrepancies between information reported on form W-2 and SSA records.   SSA stopped sending no-match letters during tax years 2007-2009 due to litigation over controversial regulations that were eventually rescinded.

On April 6, 2011, the Social Security Administration (SSA) resumed sending "Decentralized Correspondence" letters, commonly referred to as "no-match" letters, to individuals and employers notifying them of discrepancies between information reported on form W-2 and SSA records.   SSA stopped sending no-match letters during tax years 2007-2009 due to litigation over controversial regulations that were eventually rescinded.

Immigration law prohibits employers from “knowingly” employing unauthorized workers. Regulations and case law issued prior to 2007 interpret the term “knowingly” as including “constructive knowledge” and provided examples of situations that may establish “constructive knowledge.”  The challenge for employers is that receipt of a no-match letter may give the employer “constructive knowledge” that there may be an issue with a particular worker’s authorization to work in the United States.  The rescinded “No-Match Rule,” which was issued as a final rule in August 2007 and supplemented in October 2008, established a “safe-harbor” process for employers to follow when receiving a no-match letter. This allowed employers to avoid a finding that its receipt of such a letter gave it “constructive knowledge” of a worker’s ineligibility to work in the United States. However, the rule was never implemented.

With the re-introduction of no-match letters, there are no clear steps identified to protect employers who receive them, so employers are encouraged to take proactive steps and implement the following actions:

  • Establish a chain-of-command and train HR and other hiring personnel in how to conduct the I-9 process, how to respond to no-match letters, and how to deal with a jobsite visit from the Immigration and Customs Enforcement division of DHS.
  • Conduct an internal audit of I-9 forms and consider hiring an outside expert, such as an immigration attorney, to audit a random sample and correct any errors.
  • Register with the Social Security Number Verification System (SSNVS) and begin using it for new hires.  If your firm has a significant history of mismatches, then consider using SSNVS to verify the social security numbers (SSNs) of your entire workforce.
  • Include a policy in your employee handbook regarding your company’s commitment to employing only workers who are authorized to work in the U.S. and whose SSNs and names match government records.  Apply and follow the policy on a uniform, nondiscriminatory basis.
  • Adopt clauses in contracts with subcontractors, staffing companies, and other service providers furnishing workers on your jobsites by which the latter (a) certify that they are in compliance with immigration laws, (b) promise to conduct periodic self-audits of I-9s, and (c) agree to indemnify you if you are found liable for employing an unauthorized worker that they have provided.
  • Establish a recruitment plan in preparation for the possible need to replace workers who abandon their jobs or are terminated during the process.

More information about Employment Eligibility Verification is available on the U.S. Citizenship and Immigration Services website at www.uscis.gov and in the Labor and HR Topical Resources section of the AGC website.


New Website Provides Form I-9 Guidance to Employers and Employees; AGC Conference to Offer Session on I-9 Documents

The U.S. Citizenship and Immigration Services (USCIS) has launched I-9 Central, a new online resource center dedicated to Form I-9, the Employee Eligibility Verification form. This website is intended to provide employers and employees with one-click access to resources, tips and guidance to properly complete Form I-9 and better understand the Form I-9 process.

The U.S. Citizenship and Immigration Services (USCIS) has launched I-9 Central, a new online resource center dedicated to Form I-9, the Employee Eligibility Verification form. This website is intended to provide employers and employees with one-click access to resources, tips and guidance to properly complete Form I-9 and better understand the Form I-9 process.

“I-9 Central is the latest in our ongoing efforts to better serve the 7.5 million employers who use Form I-9 every time they hire an employee,” said USCIS Director Alejandro Mayorkas. “It provides critical information for all employers – whether they hire a single employee or hundreds – in an accessible, intuitive and comprehensive online format.”

The launch of I-9 Central follows the introduction of other important USCIS employment-related resources. These resources include E-Verify Self Check, a service launched in March that allows workers and job seekers in the United States to check their own employment eligibility status online, and an updated Handbook for Employers: Instructions for Completing Form I-9 (M-274) published earlier this year.  USCIS also offers free webinars on completing Form I-9.

I-9 Central includes sections about employer and employee rights and responsibilities, step-by-step instructions for completing the form, and information on acceptable documents for establishing identity and employment authorization. I-9 Central also includes a discussion of common mistakes to avoid when completing the form, guidance on how to correct errors, and answers to employers’ recent questions about the Form I-9 process.

This year, AGC’s 10th Annual HR Professionals Conference will feature a session on I-9 forms.  Led by a representative of the Immigration, Customs & Enforcement division of the U.S. Department of Homeland Security, “Before You Sign Form I-9” will be a hands-on document review workshop designed to train employers on ways to recognize fraudulent documents used to complete Form I-9 as a means of obtaining unauthorized employment.  The conference will be held October 4-5, 2011 in Kansas City, Missouri.

By law, U.S. employers must verify the identity and employment authorization for every worker they hire after Nov. 6, 1986, regardless of the employee’s immigration status. To comply with the law, employers must complete Form I-9.

For more information on Form I-9 and immigration compliance for employers, visit AGC’s Labor and HR Topical Resources webpage or www.USCIS.gov/I-9central.  To register for the HR Professionals Conference, visit www.agc.org/HR_TED.


DHS Publishes Final Rule on Form I-9; No Additional Amendments to Current Form

On April 14, 2011, the Department of Homeland Security's U.S. Citizenship and Immigration Services announced a final rule that adopts, without changes, a 2009 interim rule that changed Form I-9, the Employment Eligibility Verification form.

On April 14, 2011, the Department of Homeland Security's U.S. Citizenship and Immigration Services announced a final rule that adopts, without changes, a 2009 interim rule that changed Form I-9, the Employment Eligibility Verification form.

As a result of the interim rule, beginning on February 2, 2009, employers were required to use the new form to verify all new hires and to reverify any employee with expiring employment authorization.

There were several key changes made to the Form I-9 by the interim rule that have now been adopted by the final rule.   Employers are no longer permitted to accept expired documents, including an expired U.S. Passport, as documentation to prove identity and employment eligibility.  The rule also added a new document to the list of acceptable documents that evidenced both identity and employment authorization, and it made several technical corrections and updates.

A current version of Form I-9 can be found on the USCIS website.


NLRB Sets New Standard for Contractors’ Employees to Distribute Pro-Union Handbills on Customer’s Property

The National Labor Relations Board (NLRB) has established a new standard for addressing the access rights of off-duty employees of an onsite contractor to the premises of the property owner for the purpose of distributing union-supporting handbills.  While the case in which the new standard was issued involved a service contractor rather than a construction contractor, it could have ramifications in the construction industry.

The National Labor Relations Board (NLRB) has established a new standard for addressing the access rights of off-duty employees of an onsite contractor to the premises of the property owner for the purpose of distributing union-supporting handbills.  While the case in which the new standard was issued involved a service contractor rather than a construction contractor, it could have ramifications in the construction industry.

The case, New York New York, LLC, 356 NLRB No. 119 (March 25, 2011), involved New York New York Hotel and Casino (NYNY) and its contractor, Ark Las Vegas Restaurant Corporation, which provided food services to NYNY patrons and employees in three sit-down restaurants, a food court, an employee dining room, banquet catering, and room service.  On three occasions, some of Ark’s employees who worked at the NYNY site entered the NYNY premises while off-duty to distribute handbills to Ark’s and NYNY’s customers.  The handbills, which were distributed on the sidewalk and driveway just outside NYNY’s main entrance and at the entrances to two restaurants inside NYNY, sought support for the workers’ campaign for representation by the union that already represented NYNY’s own employees.  NYNY had the local police issue trespassing citations to the handbillers and escort them off the property.  The union then filed unfair labor practice charges, alleging that NYNY violated Section 8(a)(1) of the National Labor Relations Act.  The NLRB agreed, but the court of appeals refused to enforce the Board’s order and remanded the case for the Board to better articulate its rationale.

Section 8(a)(1) provides that it is an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.”  A primary issue here is whether the proscription applies only to an employer’s conduct vis-à-vis its own employees or extends to its actions vis-à-vis other company’s employees – i.e., whether the handbilling individuals were “employees” deserving protection from NYNY’s interference with its activities even though they were employees of NYNY’s contractor and not of NYNY. 

The Board found that Congress intended for the term “employee” in Section 8(a)(1) to cover actions by employers affecting the employees of other employers and that, therefore, NYNY possibly could be held to violate the Ark employees’ statutory rights even though they were not its own employees.  The Board rejected the argument that the Ark employees were equivalent to nonemployee union organizers – essentially outsiders – who enjoy less property access rights, but it also rejected the argument that they are equivalent to NYNY employees.  Rather, the Board set forth a new standard for employees who, like the Ark employees, are not employees of the property owner but are regularly employed on the property.

The Board held that the property owner “may lawfully exclude such employees only where the owner is able to demonstrate that their activity significantly interferes with his use of the property or where exclusion is justified by another legitimate business reason, including, but not limited to, the need to maintain production and discipline” as those terms have been defined by Board case law.  The Board explained that its decision is a relatively narrow one, applying only where the property owner “seeks to exclude, from nonworking areas open to the public, the off-duty employees of a contractor who are regularly employed on the property in work integral to the owner’s business, who seek to engage in organizational handbilling directed at potential customers of the employer and the property owner.”  Whether those parameters extend to the owners of construction sites and the employees of their construction contractors remains to be seen, but it is likely that it could under some circumstances.

The Board also left open the possibility that, in some instances, property owners will be able to demonstrate that they have a legitimate interest in imposing “reasonable, nondiscriminatory, narrowly-tailored restrictions on the access of contractors’ off-duty employees, greater than those lawfully imposed on its own employees.”  The Board declined to designate exactly what types of restrictions would be deemed permissible.  Rather, such restrictions will be evaluated on a case-by-case basis.

Applying its new standard to the facts of the case, the Board came to the same conclusion it had earlier:  that NYNY violated Section 8(a)(1) by removing the handbilling Ark employees from its property.  NYNY failed to demonstrate that the handbilling significantly interfered with its use of the property or that the removal was justified by some other legitimate business reason, such as the need to maintain operations or discipline.  Noting that NYNY had no preexisting restrictions Ark employee access to NYNY property, the Board did not consider what, if any, restrictions NYNY could have lawfully imposed short of a blanket prohibition on handbilling.

For more information on union access rights, visit the AGC’s Labor & HR Topical Resources page, then select the category “Unions/NLRA” and the subcategory “Union Access to Jobsite.”


AGC, Construction Coalition Continue Promising Efforts to Collaborate with FASB on Multiemployer Disclosure

AGC participated in a constructive meeting of the Construction Industry FASB Coalition with the Financial Accounting Standards Board (FASB) to discuss the Board’s project to enhance financial disclosure standards for employers that contribute to multiemployer benefit plans.

AGC participated in a constructive meeting of the Construction Industry FASB Coalition with the Financial Accounting Standards Board (FASB) to discuss the Board’s project to enhance financial disclosure standards for employers that contribute to multiemployer benefit plans.

The Coalition continues on a positive course of collaboration with the FASB to help achieve the Board’s goal of greater transparency and disclosure of multiemployer pension plan participation on audited financial statements of participating companies without the severe, negative collateral consequences for construction firms and their plans that was inherent in the original FASB exposure draft ED-715.

AGC was represented at the March 30 meeting by AGC Tax and Fiscal Affairs Committee Member Eric Wallace, CPA, of Carbis Walker, LLP, in Pittsburgh, Pa.  The Tax and Fiscal Affairs Committee itself has had several discussions with the FASB on the multiemployer project and submitted formal comments in a letter to the Board on November 1, 2010.

The Coalition continues to provide in-depth and expert analysis of the many issues relating to withdrawal liability, the infeasibility of disclosures relating to retiree health coverage, and the unnecessary scope of other quantitative and qualitative disclosures FASB proposed that are inappropriate for multiemployer plans and the unique way they operate in the construction industry.  The coalition is offering alternative disclosure approaches that achieve FASB”s objectives without the negative consequences inherent in the ED-715 as proposed.

The Coalition’s proposals have gained the endorsement of key players in the surety and commercial banking industries, such as Key Bank, Amalgamated Bank of Chicago, and the National Association of Surety Bond Producers.  These financial statement user representatives have assessed the group’s proposed disclosure standard and judge it appropriate for adoption by the FASB, recognizing that it avoids the negative consequences that the Coalition has laid out, yet still provides information and references they need to conduct sound underwriting judgments.  FASB has agreed to take the Coalition’s proposal under serious consideration for a possible recommendation among the options for the final Board vote.

The course of the FASB’s redeliberations on its original proposal is still being determined, and the Board has not yet decided whether it will re-expose another draft after redeliberations or publish a final standard.  Action is still expected to take place by the end of the second quarter of this year.  AGC and the Coalition will continue to monitor developments and reach out to the FASB with its in-depth expertise to help achieve an acceptable outcome.


Registration Open for 10th Annual HR Professionals Conference

Registration is now open for AGC’s HR Professionals Conference, to be held October 4-6, 2011, at the Crowne Plaza in Kansas City, Missouri.

Registration is now open for AGC’s HR Professionals Conference, to be held October 4-6, 2011, at the Crowne Plaza in Kansas City, Missouri.

The HR Professionals Conference is the premier event for human resource professionals to learn and share HR practices related to the construction industry.  On day one of the conference, sessions will include an entertaining presentation on how to get rid of the “LUZIRS” - Lazy, Undisciplined, Zero-Interest, Irresponsible, Rude, Slackers – in the organization, and “Surviving a Wage & Hour Audit,” which will be presented by an established attorney experienced with such audits along with a construction HR professional who will share her own experiences of surviving a recent audit.

Experts and peers also will be on-hand to discuss compliance with the healthcare reform mandates that take effect in 2011 and 2012, as well as techniques for lowering company health care costs.  On day two, AGC’s chief economist will answer the question “Is it time to start hiring?” and attendees will be able to participate in a hands-on document review workshop to learn best practices for recognizing fraudulent identification used to complete Form I-9.  The final session of the conference will get attendees excited about heading back to work to implement their vision for their workforce as they learn to develop a corporate culture for their organization.

This conference is packed full of construction-related sessions on HR topics such as creating a mentoring program, hiring from a remote location,  successfully operating in multiple jurisdictions, keeping your organization safe from workplace violence, using pre-employment assessments, and more.   In most sessions, construction industry examples and case studies will be shared.

The HR Professionals Conference will be co-located with AGC’s Training, Education & Development Conference, which will take place October 3-4 in the same hotel. There will be one joint session on the morning of October 4 with a keynote by Jay Forte, president of Humanetrics, on how HR and training professionals drive results in the workplace.  AGC members and Chapter staff interested in these areas can take advantage of special pricing to attend both conferences.

New this year is the Federal Contracting Compliance Construction HR Workshop, which will be held the afternoon of October 5 and the morning of October 6, directly after the HR Professionals Conference. This workshop is designed to help staff responsible for employment law compliance on federal and federally assisted projects by providing practical information and best-practice advice from experts and peers experienced in the area.  Attendees can register for this workshop alone or in conjunction with the HR Professionals Conference to receive a special discount.

Find complete session descriptions, schedule, registration, and hotel information on AGC’s website.

Space is limited, so take advantage of the early bird discount and register today!


Department of Labor Schedules Latest Prevailing Wage Conferences

The U.S. Department of Labor’s Wage and Hour Division (WHD) has scheduled five upcoming conferences throughout the country to educate federal contractors on the Davis-Bacon and Related Acts and other federal contracting wage laws the agency enforces.

The U.S. Department of Labor’s Wage and Hour Division (WHD) has scheduled five upcoming conferences throughout the country to educate federal contractors on the Davis-Bacon and Related Acts and other federal contracting wage laws the agency enforces. 

Each two-and-a-half day conference will address such topics as the process of obtaining wage determinations and adding classifications, compliance assistance and enforcement processes, and the process of appealing wage rates.  The conferences will also address issues pertaining to the Fair Labor Standards Act (FLSA) and the Family & Medical Leave Act (FMLA).

The upcoming conferences will be held on the following dates:

  • May 10-12 in Melbourne, Fla.;
  • May 24-26 in New York City;
  • July 12-14 in Phoenix;
  • August 2-4 in Denver; and
  • August 16-18 in Las Vegas.

Because this is not an AGC-affiliated event, interested parties should contact WHD at 1-866-487-9243 or whdpwc@dol.gov for more information or to register.

For additional information on the Davis-Bacon and Related Acts, download a copy of AGC’s recently recorded Davis-Bacon webinar, purchase AGC’s new Davis-Bacon Compliance Manual for Federal & Federally Assisted Construction – Third Edition, or visit AGC’s Labor & HR Topical Resources web page for guidance and compliance assistance tools.


Construction Labor Law Developments Covered at AGC's Annual Symposium

The AGC Labor and Employment Law Council held its 27th Annual Construction Labor Law Symposium on April 15 in Washington, DC.  Attorneys and chapter labor relations managers from across the country attended to learn about the latest developments in construction labor and employment law.

The AGC Labor and Employment Law Council held its 27th Annual Construction Labor Law Symposium on April 15 in Washington, DC.  Attorneys and chapter labor relations managers from across the country attended to learn about the latest developments in construction labor and employment law.

Council members and guest speakers provided presentations on a variety of timely topics, including:

  • Understanding Pre-Hire Agreements, Union Security Clauses, and Hiring Hall Arrangements in the Construction Industry
  • National Labor Relations Act Rights of Nonunion Employees
  • Multiemployer Pension Issues:  Calculating Withdrawal Liability & Update on FASB Initiatives
  • Independent Contractors and Employee Misclassification in Construction
  • Overtime Exemptions in the Construction Industry:  Rock Solid or Shifting Sands?
  • Davis-Bacon Act Misclassification and Compliance
  • Primer on §§8(b)(4) and Bannering:  A Legal Analysis & Practical Responses
  • Update on Project Labor Agreements on Federal & Federally Assisted Projects

Handouts from most of the presentations are posted in the Labor & HR Topical Resources area of AGC's website, integrated into their respective topic areas.  Access is free and exclusive to AGC members and Chapter staff.

Symposium guest speakers included Acting General Counsel Lafe Solomon and member Mark Pearce of the National Labor Relations Board, who spoke about issues before the Board that impact construction employers.  Brett Loper, former AGC staff associate who now serves as policy director to Speaker of the House John Boehner, delivered the Charles E. Murphy Keynote Address, providing insight into various matters and challenges currently facing Congress.

The AGC Labor and Employment Law Council is a special network of labor lawyers who represent AGC members and Chapters.  The Council provides its annual symposium and other activities to facilitate the sharing of information and the best possible representation of AGC affiliates.  To ensure that your in-house and outside labor and employment lawyers stay on the cutting edge, be sure that they are members of the Council. For information about Council membership, click here or contact Denise Gold at goldd@agc.org or (703) 837-5326.


Lafe Solomon, acting general counsel, National Labor Relations Board

Brett Loper, policy director to John Boehner

Mark Pearce, member, National Labor Relations Board


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