AGC's Human Resource and Labor News - November 8, 2011 / Issue No. 6-11 (Print All Articles)

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Government Agencies Partner to Enforce Independent Contractor Misclassifications; IRS Offers Risky Settlement Program

The U.S. Department of Labor (DOL) recently signed a memorandum of understanding (MOU) with the Internal Revenue Service (IRS) that is aimed at improving departmental efforts to end the misclassification of workers as independent contractors.  The MOU will enable DOL to share information and coordinate law enforcement with the IRS in what DOL says will “level the playing field for law-abiding employers and ensure that employees receive the protections to which they are entitled under federal and state law.”

The U.S. Department of Labor (DOL) recently signed a memorandum of understanding (MOU) with the Internal Revenue Service (IRS) that is aimed at improving departmental efforts to end the misclassification of workers as independent contractors.  The MOU will enable DOL to share information and coordinate law enforcement with the IRS in what DOL says will “level the playing field for law-abiding employers and ensure that employees receive the protections to which they are entitled under federal and state law.”

In addition, state labor commissioners and other agency leaders representing Connecticut, Maryland, Massachusetts, Minnesota, Missouri, Utah, and Washington have also signed MOUs with DOL’s Wage and Hour Division and, in some cases, DOL’s Employee Benefits Security Administration, Occupational Safety and Health Administration, Office of Federal Contract Compliance Programs and Office of the Solicitor.  DOL also announced plans for MOUs with the state labor agencies of Hawaii, Illinois and Montana, as well as with New York’s attorney general.

These agreements were established as a part of DOL’s Misclassification Initiative aimed at restricting the lack of access to various employee benefits and protections to which workers may be entitled as regular employees, but not as independent contractors, while simultaneously curbing the losses of Social Security, Medicare and unemployment insurance taxes that employers are required to pay for employees. 

As a result of the initiative, employers are urged to conduct self-audits to evaluate the level of vulnerability should a worker or the government claim a worker’s status as an employee instead of an independent contractor.  Questions to consider include, but are not limited to, whether or not:

  • the worker’s services are an integral part of the organization’s activities;
  • the worker has a significant investment in facilities or equipment;
  • the worker has an opportunity for profit or loss in a business sense;
  • the worker exercises the initiative, judgment and foresight of a business owner;
  • the working relationship is permanent or indefinite, rather than for a pre-determined time; and
  • the worker has meaningful control over the details of the work.

If, after conducting a thorough self-audit, it is determined that workers have indeed been erroneously misclassified, the IRS’s new Voluntary Classification Settlement Program (VCSP), which allows eligible employers the opportunity to get into compliance by making a minimal payment, may be an option for some employers.  The program requires a payment of just over one percent of the wages paid to the reclassified workers for the past year with no interest, penalties, or risk of a future audit related to the workers in question for any prior years. 

However, while this option may seem enticing to employers, it does not come without risks.  While the program offers employers a safe harbor from further penalties by the IRS, it does not provide a safe harbor from investigation or penalties by other government agencies.  As a result of the MOUs, employers that participate in the program may very well be providing the best evidence for alleged wrongdoing, which may or may not be determined by the investigating agency as willful.  Again, the investigating agencies include several sub-agencies within DOL and numerous state agencies which will now share information between each other and all have the authority to independently audit a company’s practices.  While the VCSP program seems appealing, participation may have far reaching and unintended consequences for even well-intentioned employers.

For assistance in determining a worker’s status as an employee or independent contractor, employers may use DOL’s e-Laws Advisor to help classify workers appropriately according to the Fair Labor Standards Act, a law that is enforced by DOL’s Wage and Hour Division.  For additional guidance with worker misclassification issues, AGC’s pre-recorded 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 and can be purchased from the AGC Bookstore.  Further resources are available to AGC members and chapters on AGC’s Labor & HR Topical Resources webpage under the main category “Other Legal Issues” and subcategory “Independent Contractors.”


FAR Council Issues Final Rules on Labor Laws Notice and on Labor Relations Costs

The Federal Acquisition Regulatory (FAR) Council has issued a final rule implementing Executive Order 13496 and a Department of Labor (DOL) regulation requiring most federal contractors to notify employees of their rights under the National Labor Relations Act (NLRA).  The final rule became effective immediately upon its November 2 publication in the Federal Register and makes no changes to an interim rule issued by the FAR Council in December 2010.

The Federal Acquisition Regulatory (FAR) Council has issued a final rule implementing Executive Order 13496 and a Department of Labor (DOL) regulation requiring most federal contractors to notify employees of their rights under the National Labor Relations Act (NLRA).  The final rule became effective immediately upon its November 2 publication in the Federal Register and makes no changes to an interim rule issued by the FAR Council in December 2010While the DOL regulation, which took effect in June 2010, established the content of the required notice, flow-down requirements, and penalties and procedures for noncompliance, further rulemaking was needed by the FAR Council to officially notify contracting officers to insert a new clause in covered contracts to render so that contractors would be contractually required to post the notices.

These FAR Council and DOL rules apply only to contracts directly with the federal government and related subcontracts.  They do not apply to federally assisted contracts made with nonfederal government entities (such as typical highway construction contracts with state departments of transportation) or to private contracts.  The rules should not be confused, however, with a final rule recently issued by the National Labor Relations Board (NLRB) requiring nearly all employers in the private sector to post a similar employee notice about NLRA rights.  The NLRB originally slated the rule to take effect on November 14 but has delayed implementation until January 31 amid legal challenges.

The FAR Council issued another labor-related final rule on November 2.  The second rule implements Executive Order 13494, which precludes federal contractors from being reimbursed for “persuader activity” expenses – costs incurred in trying to influence workers’ decisions about whether to form a union or to engage in collective bargaining.  The rule amends FAR 31.205-21, the cost principle addressing labor relations costs, to differentiate between costs incurred in maintaining satisfactory labor relations, which remain allowable, from those incurred for persuader activities, which are now unallowable.  Like the executive order, the rule also sets forth examples of such non-reimbursable persuader activity costs:  (1) preparing and distributing materials, (2) hiring or consulting legal counsel or consultants, (3) meetings (including paying the salaries of the attendees at meetings held for this purpose), and (4) planning or conducting activities by managers, supervisors, or union representatives during work hours.

This rule also applies only to contracts directly with the federal government.  Specifically, it will apply to contracts resulting from solicitations issued on or after December 2, 2011.  It should not be confused with a rule recently proposed by DOL that would broaden reporting requirements related to persuader activity.  The DOL rule, if implemented, would affect employers that are not federal contractors as well as those that are.


AGC Objects to Labor Department’s “Persuader Rule”

AGC of America (AGC) and the AGC Labor and Employment Law Council have submitted a comment letter opposing a proposed rule issued by the U.S. Department of Labor’s Office of Labor-Management Standards that would broaden reporting requirements of labor relations consultants (including attorneys and associations) who conduct activities to persuade employees concerning their rights to organize or bargain collectively and of the employers who receive assistance from such consultants.  AGC also signed onto comments submitted by the Coalition for a Democratic Workplace (CDW).

AGC of America (AGC) and the AGC Labor and Employment Law Council have submitted a comment letter opposing a proposed rule issued by the U.S. Department of Labor’s Office of Labor-Management Standards that would broaden reporting requirements of labor relations consultants (including attorneys and associations) who conduct activities to persuade employees concerning their rights to organize or bargain collectively and of the employers who receive assistance from such consultants.  AGC also signed onto comments submitted by the Coalition for a Democratic Workplace (CDW). 

The Labor-Management Disclosure Act (LMRDA) requires the disclosure of certain details of an agreement or arrangement between an employer and a consultant for such “persuader” activity.  The law includes an exemption, however, if the consultant is merely providing “advice” and is not communicating directly with employees.  The proposed rule would narrow the Department’s interpretation of “advice,” thereby expanding the scope of the disclosure requirement.  It would require employers and their consultants to disclose sensitive financial information and other details of their arrangement, even if the consultant does not communicate directly with employees or draft such communications.  As a consequence, employers could become less able to obtain valuable guidance about their rights and responsibilities during a union organizing drive, or assistance in preparing for communications with employees about their own rights and responsibilities.

AGC’s comments assert that the proposed rule, by denying employers access to important advice on how to conduct themselves lawfully, would ultimately lead to an increase in unintended, unlawful behavior.  AGC explained how the proposed rule would have a particularly damaging impact on the construction industry due to various unique features of labor relations and labor law in the industry.  AGC also expressed concern about the proposed rule’s apparent inclusion of association-provided advice and education as reportable “persuader” activity.  The comments supplement CDW’s extensive comments addressing how the proposed rule conflicts with the LMRDA, the National Labor Relations Act, and the Constitution, fails to satisfy procedural requirements for rulemaking, and imposes a heavy burden on small businesses.  The comment period closed on September 21.

For more info, contact Denise Gold, Associate General Counsel, at (703) 837-5326 or goldd@agc.org.


NLRB Delays Effective Date of Posting Requirement While AGC-Supported Coalition Joins Lawsuit to Block Rule

The National Labor Relations Board announced on Oct. 5 that it has postponed the implementation date of its recently issued regulation requiring nearly all private-sector employers to post notices of employee rights under the National Labor Relations Act.  The Board has delayed the deadline for compliance from Nov. 14, 2011, to Jan. 31, 2012.  The agency stated that it plans to make no further changes to the rule or to the form or content of the required notice.

The National Labor Relations Board announced on Oct. 5 that it has postponed the implementation date of its recently issued regulation requiring nearly all private-sector employers to post notices of employee rights under the National Labor Relations Act.  The Board has delayed the deadline for compliance from Nov. 14, 2011, to Jan. 31, 2012.  The agency stated that it plans to make no further changes to the rule or to the form or content of the required notice. 

In explaining the reason for the postponement, the Board said that its decision “followed queries from businesses and trade organizations indicating uncertainty about which businesses fall under the Board’s jurisdiction, and was made in the interest of ensuring broad voluntary compliance.”  However, the delay also allows time for progress in legal challenges to the rule.  The first of several lawsuits filed to overturn the rule was brought by the National Association of Manufacturers (NAM).  NAM argues that the rule exceeds the Board’s statutory jurisdiction and authority.  The Coalition for a Democratic Workplace – of which AGC is a member – joined NAM’s lawsuit on September 26.  A hearing on motions for summary judgment is scheduled for December 19 in the U.S. District Court for the District of Columbia.  The court could issue a decision on the motions before the new implementation date of the rule.

For more information on the rule and the poster, read the AGC articles published here and here.


Labor Department Provides Interim Guidance on Electronic Fee Disclosures

The U.S. Department of Labor’s Employee Benefits Security Administration (EBSA) has issued an interim policy with regard to providing electronic disclosures of information required under the participant-level fee disclosure final rule.  Generally, this rule requires retirement plan sponsors and employers to disclose certain plan and investment-related information, including information about fees and expenses, to participants and beneficiaries of participant-directed investment plans, such as 401(k) plans.

The U.S. Department of Labor’s Employee Benefits Security Administration (EBSA) has issued an interim policy with regard to providing electronic disclosures of information required under the participant-level fee disclosure final rule.  Generally, this rule requires retirement plan sponsors and employers to disclose certain plan and investment-related information, including information about fees and expenses, to participants and beneficiaries of participant-directed investment plans, such as 401(k) plans.

Providing information to employees electronically has become more of a common practice due to administrative and cost efficiencies.  “This technical release responds to requests by some plan sponsors and service providers to expand the ability of ERISA plans to use modern electronic disclosure technologies to communicate with plan participants while ensuring that all workers will benefit from the increased transparency provided by our fee disclosure rule,” said Assistant Secretary of Labor for the Employee Benefits Security Administration Phyllis C. Borzi in a recent statement.

To help individuals make informed decisions regarding their investments, the final rule required plan administrators to begin sharing more information with individuals starting with plans effective Nov. 1, 2011, and after.  Since the guidelines were only recently made available to plan administrators, EBSA has delayed the effective date of the final rule to April 1, 2012.  Then, plan sponsors and employers will have 60 days from the start date of the plan year, or 60 days after the regulation’s effective date of April 1, 2012, whichever is later, to provide information to participants.

Electronic disclosures may be distributed only to employees who ordinarily have access to computers as an integral part of their job duties and to other participants (i.e., retirees, former employees, beneficiaries, and employee-participants who don’t have a computer as an integral part of their duties) who have agreed, in writing, to receive disclosures electronically.

For additional information, employers may use EBSA’s Small Business Retirement Savings Advisor which provides answers to a variety of questions about retirement savings options for small business employers and determines which program may be most appropriate for a business.  Further resources are available to AGC members and chapters on AGC’s Labor & HR Topical Resources webpage under the main category “Compensation” and subcategory “Retirement Savings Benefits.”


EEOC Opinion Letter Provides Guidance on Use of Arrest and Conviction Records When Hiring

In response to an employer’s request, the U.S. Equal Employment Opportunity Commission (EEOC) recently issued a non-binding opinion letter that provides insight into the Commission’s current enforcement position regarding protections for job applicants with arrest or conviction records under Title VII of the Civil Rights Act of 1964.  The letter suggests that the Commission will continue to treat arrests and convictions differently and will closely review the employer’s policy with regard to how long convictions are disqualifying and whether the underlying criminal conduct is related to the job duties for the position in question.

In response to an employer’s request, the U.S. Equal Employment Opportunity Commission (EEOC) recently issued a non-binding opinion letter that provides insight into the Commission’s current enforcement position regarding protections for job applicants with arrest or conviction records under Title VII of the Civil Rights Act of 1964.  The letter suggests that the Commission will continue to treat arrests and convictions differently and will closely review the employer’s policy with regard to how long convictions are disqualifying and whether the underlying criminal conduct is related to the job duties for the position in question.

Regarding conviction records, the EEOC states that criminal conduct should be “recent enough” and “sufficiently job-related to be predictive of performance in the position sought, given its duties and responsibilities.”  As a result, the EEOC recommended that the employer narrow its criminal history inquiry to focus on “convictions that are related to the specific positions in questions, and that have taken place in the past seven years, consistent with the proposed provisions of the federal government’s general employment application form.”  Because the criminal justice system requires the highest degree of proof for a conviction (i.e., beyond a reasonable doubt), a conviction record can serve as a sufficient indication that the person, in fact, committed the offense.  Regarding arrest records, the EEOC explains that they are unreliable indicators of guilt because: (1) individuals are presumed innocent until proven guilty; (2) charges may be incomplete or eventually dropped; and (3) the possibility of errors in arrest records including mistaken identities, clerical errors, confusion regarding names, etc. 

While the letter clarifies that a pre-employment inquiry concerning an applicant’s criminal history does not itself violate Title VII, it does suggest that the use of criminal records as part of the screening process may be a violation if the employer intentionally and selectively enforces its screening policy against members of protected classes.  The letter further explains that if it is determined that the policy has a disparate impact on protected class members, the employer’s policy regarding the use of arrest and conviction records must be “job related and consistent with business necessity.”

Even though the EEOC states that the letter “does not constitute an official opinion of the Commission,” it does suggest that this is a high priority area for the EEOC.  As a result, employers should review their screening policies and practices as they relate to arrest and conviction records to identify any possible risks of disparate treatment or disparate impact.  

For additional information on pre-employment inquiries regarding arrests and conviction records, visit the EEOC website.  For pre-employment resources and tools, including checklists and sample forms, visit AGC’s Labor & HR Topical Resources webpage.  The primary category is “Hiring & Firing” and the secondary category is “Hiring.”


IRS Provides Guidance on Tax Treatment of Employer-Provided Cell Phones

The Internal Revenue Service (IRS) has recently issued guidance designed to clarify the tax treatment of employer-provided cell phones.

The Internal Revenue Service (IRS) has recently issued guidance designed to clarify the tax treatment of employer-provided cell phones.

The guidance relates to a provision in the Small Business Jobs Act of 2010, that removed cell phones from the definition of listed property, a category under tax law that normally requires additional recordkeeping by taxpayers.  According to the clarification, when an employer provides an employee with a cell phone primarily for noncompensatory business reasons, the business and personal use of the cell phone is generally nontaxable to the employee. The IRS will not require recordkeeping of business use in order to receive this tax-free treatment.

The IRS also announced, in a memo to its audit examiners, a similar administrative approach that applies with respect to arrangements common to small businesses that provide cash allowances and reimbursements for work-related use of personally-owned cell phones. Under this approach, employers that require employees, primarily for noncompensatory business reasons, to use their personal cell phones for business purposes may treat reimbursements of the employees’ expenses for reasonable cell phone coverage as nontaxable. This treatment does not apply to reimbursements of unusual or excessive expenses or to reimbursements made as a substitute for a portion of the employee’s regular wages.

The guidance does not apply to the provision of cell phones or reimbursement for cell-phone use that is not primarily business-related, as such arrangements are generally taxable.

In light of these changes, employers should review their cell phone policies to ensure that any employer-provided cell phone or reimbursement is for a noncompensatory business purpose and is not merely to promote morale, attract employees or to add to an employee’s compensation.


Union Contractors Meet with Basic Trade Leaders and Hold Strategic Planning Session

AGC of America held an AGC-Basic Trades Forum and Union Contractors Committee Meeting on Oct. 17 in Washington, DC.  AGC-member union contractors and their chapter staff from across the country attended the events, which were designed to provide an opportunity for union contractors to voice their concerns to leaders of the national unions and the association.

AGC of America held an AGC-Basic Trades Forum and Union Contractors Committee Meeting on Oct. 17 in Washington, DC.  AGC-member union contractors and their chapter staff from across the country attended the events, which were designed to provide an opportunity for union contractors to voice their concerns to leaders of the national unions and the association.

AGC-Basic Trades Forum

President Mark Ayers and Secretary-Treasurer Sean McGarvey of the Building and Construction Trades Department, AFL-CIO (BCTD) attended the AGC-Basic Trades Forum, along with General President Walter Wise of the Iron Workers, General President James Boland of the Bricklayers, and Treasurer Earl Hurd of the Operative Plasterers and Cement Masons unions.  Union Contractors Committee (UCC) Chairman Jim Clemens presided over the meeting, while UCC Regional Representative Ed McNeill served as moderator, presenting questions to the labor panel on such topics as multiemployer pension problems, union contractor cost competitiveness, jurisdictional disputes, and craft worker recruitment.    AGC President Kris Young and CEO Stephen Sandherr also participated.

During their introductory remarks, labor leaders decried lost man-hours and jobs over the past two years, and mentioned some of their organizations’ efforts to manage the crisis.  Ayers spoke of BCTD efforts to raise capital for both public and private construction and to be politically active.  Wise mentioned joint efforts with contractors to market the value of union construction in terms of productivity and training, as well as outreach to nonsignatory contractors seeking to overcome anti-union prejudices.  Wise, Boland, and Hurd each talked about initiatives to boost training during the period, including a significant increase in journeyman upgrading (Wise), development of a new, state-of-the-art training center (Boland), and added focus on training craft workers to keep up with changing technology and materials (Hurd).

Pensions

When questioned about efforts to shore up defined benefit multiemployer pension funds and willingness to consider alternative retirement plan models, some labor leaders expressed openness to veer away from traditional behaviors and pension models.  Wise reported that IMPACT, the Ironworkers’ national labor-management committee, has been examining various hybrid plan models.  While the defined benefit model gives workers the most retirement security, he said, “a compromise is out there,” and we must be willing to discuss it and to adapt.  But before we can move forward, we must get out of the crisis we’re currently in, according to Wise, which can be accomplished through growth and trustee education.  He also observed that some Ironworkers locals are shifting previously negotiated money from wages or even from an annuity into suffering pension funds to share in the burden with contributing contractors.  Boland reported that the Bricklayers are doing the same shifting with their national pension fund but that the international union has not yet looked into hybrid plans.  Hurd acknowledged that hybrid plans “have some merit” and that some of his locals are using them.  But he expressed concern for workers’ retirement security, noting that construction workers work on a seasonal basis and often fail to save properly.  It may be easier to organize open-shop contractors with a defined contribution plan, but such a plan is not what is best for the workers, he said.

Cost-Competitiveness

McNeill relayed union contractors’ current challenges with cost-competitiveness and market share losses to open shop contractors due to higher wage and benefit costs, inefficient work rules, restrictive subcontracting clauses, and the like.  McGarvey stated his view that most changes in those areas can be accomplished locally through difficult but fair collective bargaining negotiations.  He recommended looking at recent successes achieved by contractors in New York.  Wise noted that negotiations are more difficult this year because of the uncertainty of the economy.  While the fact that local business managers are elected can impact what positions they take in bargaining, he has seen greater interest by local union members and leaders in market share and competitiveness in recent years.  His union has initiated “Survival of the Fittest” training as one effort by to encourage this.

Jurisdictional Disputes and Other Inter-Union Strife

Contractors seemed taken aback when McGarvey asserted that jurisdictional disputes are “unheard of” today.  McGarvey was particularly speaking of disputes on large, industrial projects under national agreements that incorporate The Plan for the Settlement of Jurisdictional Disputes, reporting that “only” 25 arbitrations have taken place in the past two years despite the poor economy.  Contractors in the audience advised that jurisdictional disputes are quite common at the local level in many areas, often with trades that were not represented at the present meeting.

This led to a discussion of the relationship between the BCTD and the Carpenters union (UBC), which, along with the Operating Engineers, is not presently affiliated with the Department.  McGarvey said that the BCTD is done trying to persuade the Carpenters to reaffiliate.  Ayers announced that the BCTD decided just the prior week to implement Resolution 70, a resolution passed by the AFL-CIO convention in 2009 authorizing the chartering of a new carpenters union, and to stop recognizing the UBC as a legitimate union.  He said that the effort will begin in the Northeast and spread over time.  He spoke about “insurgent groups” of carpenters dissatisfied with the UBC and warned that contractors could be faced with a challenge to UBC representation by such groups via petitions for elections by the National Labor Relations Board.  When asked about such a group in the Albany, NY, area known as “Local 1,” Ayers stated that the group was not formed by the BCTD and has no formal relationship with the AFL-CIO at this time.  If they or similar groups take the steps necessary to become a “legitimate union” recognized by the federal government – such as establishing bylaws and bank accounts – then the BCTD would consider affiliation.  Despite all of this, McGarvey said that the “door is never closed” to further discussions with the UBC.

McGarvey said that the Solidarity Charter option for UBC locals to participate in local Building Trade Councils remains available, at least for now.  Some UBC members disagree with the union’s business model, he said, and the BCTD supports democracy for rank-and-file union members.  However, the BCTD understands that there are positive relationships at the local level in some areas, said McGarvey.

Workforce Development

When asked about efforts to recruit more workers into the trades and to increase diversity, McGarvey spoke about several programs that the BCTD is involved in, including the Southeast Manpower Tripartite Alliance – a pre-apprenticeship program in the Southeast also supported by the Construction Users Roundtable and contractor associations, a Multi-Craft Core Curriculum program focused on disadvantaged populations, and outreach to women’s and veterans’ groups.

UCC Meeting

In an AGC-only meeting following the AGC-Basic Trades Forum, the UCC decided to send a letter to all building trades presidents asserting that – while AGC does not “pick sides” and believes it is inappropriate to advise the unions about how to organize themselves – the strife between the unions that are inside the BCTD and those outside the BCTD is causing problems for contractors and is damaging the image and marketability of union construction.

Chapter Survey Results

The UCC then engaged in a strategic planning session building on the results of a recent chapter survey designed to gather updated information about chapters’ collective bargaining relationships and how the Committee can best serve collective bargaining chapters today.  UCC Staff Associate Denise Gold reported that 23 of the 54 chapters and branches that responded to the survey (42.6%) indicated that 75-100% of their contractor members identify as union contractors.  Of the 44 respondents who indicated that over 10% of their contractor members identify as union contractors, 42 (95.5%) said that they provide collective bargaining negotiation services.   All remaining respondents indicated that they bargain with the Laborers, 97.6% with the Carpenters, 92.7% each with the Operating Engineers and with the Operative Plasters and Cement Masons, 65.9% with the Ironworkers 51.2% with the Teamsters, and 41.5% with the Bricklayers.   The Carpenters are considered a “lead craft” by 95.1% of respondents, followed by the Laborers (87.7%), and then the Operating Engineers (65.9%).  Thirty of 41 respondents (73.%) said that most of all of their union contractor members are signatory to two or three collective bargaining agreements with different crafts per geographic area.

When asked to write in the top three issues that the chapters would like AGC of America to address with union leaders on their behalf, pension issues were mentioned by an overwhelming majority of respondents.  Jurisdictional issues and cost competitiveness were the next most common issues listed.  The remaining answers raised a host of issues, such as health care costs, work rules, jobs recovery, and workforce development.  The survey also asked collective bargaining chapters, “What else can AGC of America do to enhance your labor relations services?”  Respondents wrote in a broad array of answers, most of which involved the association’s role as a liaison to the international unions or as a provider of information.  Several respondents also expressed interest in services related to networking, management training, and solving pension problems.

Strategic Planning

Participants in the strategic planning session said that, among the current services and resources currently provided for union contractors by the UCC or by AGC of America in general, they find the most valuable to be the Union Contractors e-Forum, the Labor & HR Topical Resources web page, the Construction Labor Law Symposium (an annual program for attorneys and chapter staff), collective bargaining seminars, and service as a liaison to the internationals.  While no one identified any current services as not valuable, some participants suggested that AGC should promote existing resources more often and in more places, adding that labor resources should be “cross-marketed” in AGC division newsletters and other media and that such communications should include links to electronic resources.  Suggestions made for additional services and activities include:

  • More opportunities for union contractors to share “war stories” and trends;
  • More opportunities to give feedback to union leaders and on a more regular basis;
  • Meetings to foster the filtering down of information to local union leaders;
  • A legal helpline connecting contractors with outside labor and employment attorneys;
  • Webinars addressing pensions and risk management; and
  • Trustee education specifically for contractor trustees.

To view PowerPoint slides from the committee meeting, click here.

The UCC is scheduled to meet next on March 13, during AGC’s Annual Convention in Honolulu, Hawaii.  For more information about the Convention, visit http://convention.agc.org/.

For more information about the UCC, contact Denise Gold at goldd@agc.org or (703) 837-5326.


FASB Issues New Multiemployer Plan Disclosure Standard; Update Represents Victory for AGC

As anticipated, the Financial Accounting Standards Board (FASB) on Sept. 21 issued an Accounting Standards Update requiring employers that participate in multiemployer pension plans to provide additional quantitative and qualitative disclosures in their financial statements.  AGC is proud of the successful, painstaking efforts by AGC’s Tax and Fiscal Affairs Committee and the Construction Industry FASB Coalition, of which AGC was an active member, in getting the most dangerous provisions of the originally proposed standard removed, including disclosures about withdrawal liability and retiree health and welfare benefits (though the latter might be addressed in a future initiative).

As anticipated, the Financial Accounting Standards Board (FASB) on Sept. 21 issued an Accounting Standards Update requiring employers that participate in multiemployer pension plans to provide additional quantitative and qualitative disclosures in their financial statements.  AGC is proud of the successful, painstaking efforts by AGC’s Tax and Fiscal Affairs Committee and the Construction Industry FASB Coalition, of which AGC was an active member, in getting the most dangerous provisions of the originally proposed standard removed, including disclosures about withdrawal liability and retiree health and welfare benefits (though the latter might be addressed in a future initiative).

The new disclosures include the following:

  • The significant multiemployer plans in which an employer participate, including the plan names and identifying number.
  • The level of an employer’s participation in the significant multiemployer plans, including the employer’s contributions made to the plans and an indication of whether the employer’s contributions represent more than 5 percent of the total contributions made to the plan by all contributing employers.
  • The financial health of the significant multiemployer plans, including an indication of the funded status, whether funding improvement plans are pending or implemented, and whether the plan has imposed surcharges on the contributions to the plan.
  • The nature of the employer commitments to the plan, including when the collective bargaining agreements that require contributions to the significant plans are set to expire and whether those agreements require minimum contributions to be made to the plans.

Users of financial statements would be able to use the Employer Identification Number, the plan name, and, if applicable, the plan number, to obtain additional information, including the funded status of the plan(s), from sources outside the financial statements, such as the plan’s annual report (Form 5500). 

Employers are also required to make additional disclosures about the plans that otherwise may not be available publicly, including the following:

  • A description of the nature of the plan benefits.
  • A qualitative description of the extent to which the employer could be responsible for the obligations of the plan, including benefits earned by employees during employment with another employer.
  • Other quantitative information, to the extent available, as of the most recent date available, to help users understand the financial information about the plan, such as total plan assets, actuarial present value of accumulated plan benefits, and total contributions received by the plan.

For public entities, the enhanced disclosures are required in fiscal years ending after Dec. 15, 2011.  For nonpublic entities, the enhanced disclosures are required in fiscal years ending after Dec. 15, 2012.

For background information on this issue, including AGC’s involvement, click here, here, here, and here.

For more information, please contact Karen Lapsevic at (703) 837-4733 or lapsevick@agc.org.


AGC to Provide Two-Part, Advanced Davis-Bacon Webinar

This year marks the 70th anniversary of the enactment of the Davis-Bacon Act. So, what has changed in 70 years? While the law itself hasn’t changed much, the administration of the law has changed significantly, causing concern for many contractors with federal and federally assisted construction contracts.  Davis-Bacon wage rates are increasing and so are the Department of Labor’s audit and enforcement efforts.  As a result, AGC will provide a webinar in two sessions – on December 7 and 8 from 2:00-3:30 p.m. EST – on The Davis-Bacon Act Today: What’s New for Federal Construction Contractors.  This advanced-level webinar will explain to construction contractors with federal and federally assisted contracts how things are changing and how to safeguard a company from the risks.

This year marks the 70th anniversary of the enactment of the Davis-Bacon Act. So, what has changed in 70 years? While the law itself hasn’t changed much, the administration of the law has changed significantly, causing concern for many contractors with federal and federally assisted construction contracts.  Davis-Bacon wage rates are increasing and so are the Department of Labor’s audit and enforcement efforts.  As a result, AGC will provide a webinar in two sessions – on December 7 and 8 from 2:00-3:30 p.m. EST – on The Davis-Bacon Act Today: What’s New for Federal Construction Contractors.  This advanced-level webinar will explain to construction contractors with federal and federally assisted contracts how things are changing and how to safeguard a company from the risks.

On day one of the webinar, Natalie Boan, branch chief of construction wage determinations in the U.S. Department of Labor’s Wage and Hour Division (WHD), will educate participants on the wage determinations process, including WHD’s new goals for completing wage surveys and the process for challenging wage determinations.  On day two, Timothy Helm, branch chief of government contracts enforcement for WHD, will partner with attorney and Davis-Bacon compliance expert Deborah Wilder of Contractor Compliance and Monitoring, Inc., to give an insightful look into WHD’s enforcement initiatives and investigation procedures, problem areas that have been routinely found in construction contractor audits, correcting areas during self audits, and more.  SPHR-certified Kris Talynn, director of HR for Okland Construction, will moderate the webinar series, addressing the most common compliance issues faced by contractors and offering subcontractor training tips.

Webinar registrants may co-order AGC’s Davis-Bacon Compliance Manual – Third Edition for a special discounted price, or purchase the webinar independently.

For additional information, visit www.agc.org/DBwebinar

*This program has been submitted to HRCI for review.


Co-located HR Professionals and TED Conferences Continue to Grow; 2012 Conference Dates & Location Announced

More than 150 attended the 10th Annual HR Professionals Conference and the 5th Annual Training, Education & Development Conference, which ran back-to-back with a joint keynote session earlier this month in Kansas City, Missouri.

More than 150 attended the 10th Annual HR Professionals Conference and the 5th Annual Training, Education & Development Conference, which ran back-to-back with a joint keynote session earlier this month in Kansas City, Missouri.

In addition to the Jay Forte’s keynote address on how to maximize results by engaging and empowering employees to do their best, attendees had ample opportunities to participate in roundtable sessions, hear presentations by industry experts on a wide variety of topics, network at social events, and, most importantly, connect with their construction industry peers from across the nation.

The HR Professionals Conference offered a unique mix of both plenary and breakout sessions on keeping your organization free from workplace violence, surviving a Wage and Hour Audit, recent and upcoming employment law changes that affect construction; and roundtable discussions where attendees were able to share best practices for creating a mentoring program, lowering healthcare costs, and hiring from a remote location.

For the first time in conjunction with the HR Professionals Conference, AGC held a Federal Contracting Compliance Construction HR Workshop that provided critical information for general and specialty contractors engaging in federal construction work by offering practical guidance from seasoned industry professionals.  Presentation topics included E-Verify for federal contractors, understanding ethics in the construction industry, and panel discussions on both the Davis-Bacon Act and affirmative action compliance and audit preparation.  Several industry professionals shared their experiences after successfully undergoing an audit, and Kris Talynn of Okland Construction gave an insightful presentation on the importance of training subcontractors and how to go about doing so.

The opening TED Conference session by FMI’s Andy Patron was a huge success, as he introduced the 2011 U.S. Construction Industry Talent Development Report, which contains a wealth of information about the challenges, concerns and innovations having an impact on the construction industry in the last year. The report is available free with a registration to FMI.

Additional TED sessions included well-attended breakout sessions on creating and using distance-learning programs; helping guide field personnel to become great classroom facilitators, creating a culture of learning for Hispanic employees, and measuring the value of investing in workforce education.

AGC would like to thank our generous sponsors, without whom the conferences would not have been possible: the National Center for Construction Education & Research, PAS, Inc., HireTouch by Imagetrend, eMars, FMI, BirdDog, and Capitol Immigration Law.

Both conferences and the federal workshop will be held Oct. 15-18, 2012, in San Antonio, so mark your calendars now!


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