AGC's Human Resource and Labor News - May 29, 2013 / Issue No. 3-13 (Print All Articles)

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Another Appeals Court Invalidates Recess Appointment to NLRB

The employer community has won another significant victory in litigation challenging the authority of the National Labor Relations Board (NLRB). On May 16, the U.S. Court of Appeals for the Third Circuit invalidated President Obama’s March 2010 recess of Craig Becker to the NLRB. The court agreed with the DC Circuit’s finding in the Noel Canning case that the President’s authority to make recess appointments is reserved for intersession breaks of the Senate, not intrasession breaks. Becker’s appointment took place during an intrasession break.

The employer community has won another significant victory in litigation challenging the authority of the National Labor Relations Board (NLRB). On May 16, the U.S. Court of Appeals for the Third Circuit invalidated President Obama’s March 2010 recess of Craig Becker to the NLRB. The court agreed with the DC Circuit’s finding in the Noel Canning case that the President’s authority to make recess appointments is reserved for intersession breaks of the Senate, not intrasession breaks. Becker’s appointment took place during an intrasession break.

The case, NLRB v. New Vista Nursing and Rehabilitation, involves an August 2012 order by the NLRB finding that employer New Vista committed an unfair labor practice when it refused to bargain with a newly certified union of nurses. Although the NLRB has five members when fully comprised, it may – and typically does – delegate authority to issue decisions to panels of three members. In this case, the order was issued by a three-member panel that included Becker. New Vista argued that the order was invalid because Becker’s appointment was invalid. The Third Circuit agreed.

The primary issue in the case was the interpretation of the Recess Appointments Clause of the U.S. Constitution. The clause provides that “[t]he President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” In a lengthy, painstaking opinion, the court explored the text, context, and historical application of this and other clauses of the Constitution. It concluded that “the Recess of the Senate” refers to only intersession breaks – i.e., breaks between Senate sessions. Since Becker was appointed during an intrasession break – i.e., a break that occurred within a Senate session – the appointment was invalid. Accordingly, the panel issuing the order against New Vista lacked the requisite number of members to exercise the NRLB’s authority and was vacated by the court.

While consistent with the DC Circuit’s Noel Canning decision, the Third Circuit’s holding on the intersession requirement is inconsistent with a 2004 decision by the Eleventh Circuit. The growing split in the circuits on this important question increases the likelihood that the Supreme Court will rule on the issue. As reported earlier, the government has petitioned the Court to review the Noel Canning decision.

Worth noting is that the Third Circuit in New Vista expressly opted not to rule on the meaning of the word “happen” in the Recess Appointments Clause. The DC Circuit in Noel Canning interpreted the term to restrict the President’s recess appointment authority to fill only vacancies that arise during an intersession recess. That is, the appointment must take place during the same intersession recess in which the vacancy arose. A split among several circuits also exists on this issue.

New Vista (and Noel Canning) calls into question the validity of all NLRB decisions in which Becker participated during his service on the Board between March 2010 and January 2012. This includes several significant decisions as well as the “quickie election” rule (which is already on hold as the result of separate litigation). Moreover, it calls into question every decision of the NLRB from the time Chairman Wilma Leibman resigned from the Board in August 2011 through the present. That is because, since then, the Board has continuously relied on recess appointments made during intrasession recesses to establish the three-member quorum required to exercise its powers. Presently, the Board is conducting business as usual, even though it has only one confirmed member (Chairman Mark Pearce) and two members (Sharon Block and Richard Griffin) whose recess appointments were invalidated in Noel Canning.

The uncertainty of the Board’s authority threatens to become decidedly void if no new appointments are confirmed by August 27. On that date, Pearce’s term expires. President Obama on April 9 nominated two new members (Philip Miscimarra and Harry Johnson, III) and re-nominated Pearce for a new term, but the Senate has yet to confirm them.


Court Agrees with CDW, Strikes Down NLRB Posting Rule

In another victory for the AGC-supported Coalition for a Democratic Workplace (CDW), the U.S. Court of Appeals for the District of Columbia Circuit (DC Circuit) has invalidated a regulation by the National Labor Relations Board (NLRB) that required most private-sector employers to post designated notices informing employees of certain rights under the National Labor Relations Act (NLRA), including the right to organize.

In another victory for the AGC-supported Coalition for a Democratic Workplace (CDW), the U.S. Court of Appeals for the District of Columbia Circuit (DC Circuit) has invalidated a regulation by the National Labor Relations Board (NLRB) that required most private-sector employers to post designated notices informing employees of certain rights under the National Labor Relations Act (NLRA), including the right to organize. As previously reported, the Board published the controversial final rule in August 2011, but put implementation on hold after the D.C. Circuit issued a temporary injunction on the rule. The court has now permanently enjoined the rule. The CDW was a co-plaintiff in the case, the National Association of Manufacturers v. NLRB (D.C. Cir., 5/7/13). To read more, please click here.


NLRB's Advice Memo Provides Some Clarity on Acceptable Confidentiality Provisions

The National Labor Relations Board (NLRB) recently issued new guidance clarifying the Board’s decision in Banner Health System d/b/a Banner Estrella Medical Center, 358 N.L.R.B. No. 93 (2012)The Board held in that case that an employer may not maintain a blanket rule prohibiting employees from discussing ongoing investigations of employee misconduct.

 

The National Labor Relations Board (NLRB) recently issued new guidance clarifying the Board’s decision in Banner Health System d/b/a Banner Estrella Medical Center, 358 N.L.R.B. No. 93 (2012)The Board held in that case that an employer may not maintain a blanket rule prohibiting employees from discussing ongoing investigations of employee misconduct. In Banner Health, the Board rejected the employer's argument that the confidentiality instruction was necessary to protect the integrity of its investigations and found the employer's "generalized concern" insufficient to outweigh employees' rights under Section 7 of the National Labor Relations Act. Instead, the Board concluded, in every investigation, an employer must identify a specific need to protect witnesses, avoid spoliation of evidence or fabrication of testimony, or prevent a cover-up, before instructing employees to maintain confidentiality. Consequently, in the Board’s view, the blanket confidentiality instruction at issue in Banner Health violated the Act.

Now, eight months later, the NLRB’s Division of Advice released a Memorandum containing a sample confidentiality policy that would seemingly avoid the Section 7 conflict, Verso Paper, NLRB Div. of Advice, No. 30-CA-089350 (Jan. 29, 2013). The Memorandum, which was issued in January but just recently released to the public, analyzes the following confidentiality policy covering employees at paper mills throughout the country:

[The Company] has a compelling interest in protecting the integrity of its investigations. In every investigation, [the Company] has a strong desire to protect witnesses from harassment, intimidation and retaliation, to keep evidence from being destroyed, to ensure that testimony is not fabricated, and to prevent a cover-up. To assist [the Company] in achieving these objectives, we must maintain the investigation and our role in it in strict confidence. If we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination.

The Division of Advice determined, based upon Banner Health, that the confidentiality policy was “overbroad because the Employer cannot maintain a blanket rule regarding the confidentiality of employee investigations, but must demonstrate its need for confidentiality on a case-by-case basis.” 

Notably, the Division of Advice suggested language that would render the overbroad confidentiality policy acceptable in its view. The Division expressly stated that the first two sentences in the employer’s policy were appropriate, and explained that the remaining portion of the rule could be modified, consistent with Banner Health, to lawfully advise that:

[The Company] may decide in some circumstances that in order to achieve these objectives, we must maintain the investigation and our role in it in strict confidence. If [the Company] reasonably imposes such a requirement and we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination.

While recognizing that the Advice Memorandum does not have the legal effect of a Board decision, it at least provides a sanctioned viewpoint on acceptable confidentiality rules and can be persuasive when dealing with Regional offices, and even the Board in the absence of other guiding materials. At a minimum, the Advice Memorandum signals that the General Counsel would not prosecute a case where the employer used the suggested confidentiality language. Such insight provides useful guidance for employers who are trying to determine the correct confidentiality protocols and policy language in light of the Board’s Banner Health decision.

An important final point – the Advice Memorandum recommended that a Complaint be issued because the overbroad confidentiality provision “does not take into account the Employer’s burden to show in each particular situation that the Employer has a business justification for confidentiality that outweighs employees’ Section 7 rights.” Thus, as set forth in Banner Health, the Board will scrutinize whether the employer can demonstrate a particularized and sufficient need for a confidentiality instruction in each investigation. Consequently employers should consider, as we previously explained in our ASAP on Banner Health, eliminating global prohibitions on employee discussions of internal investigations in favor of language indicating that confidentiality may be necessary under certain circumstances, and training those employees charged with conducting internal investigations on circumstances warranting a confidentiality instruction, how to tailor those instructions, and how to proceed with investigations in the absence of confidentiality protections. 

Editor’s note:  This article was written by guest author Tracy Stott Pyles, Shareholder, Littler Mendelson P.C., Columbus, OH, and reprinted with permission.  Ms. Pyles can be reached at (614) 463-4221 or tpyles@littler.com. 


Labor Department Provides Model Exchange and COBRA Election Notices Required by Affordable Care Act

Beginning January 1, 2014, individuals and employees of small businesses will have access to health coverage through a health insurance market (known as an "Exchange" or "Marketplace") in their state. Open enrollment for the Marketplace begins October 1, 2013. The Affordable Care Act (ACA) requires employers to provide employees with a notice of their coverage options available through the Marketplace ("Exchange" or "Marketplace" Notice).

Beginning January 1, 2014, individuals and employees of small businesses will have access to health coverage through a health insurance market (known as an "Exchange" or "Marketplace") in their state. Open enrollment for the Marketplace begins October 1, 2013. The Affordable Care Act (ACA) requires employers to provide employees with a notice of their coverage options available through the Marketplace ("Exchange" or "Marketplace" Notice).

On May 8, 2013, the U.S. Department of Labor (DOL) issued Technical Release 2013-02 providing two model Marketplace Notices (one for employers that provide health coverage, and another for employers that do not provide health coverage) and clarifying questions about the Notice requirement, such as when and how to provide the Notice. The Technical Release also includes a revised model COBRA election notice, which now includes information about coverage through the Marketplace. For additional information on the notice requirements, click here.

Exchange or Marketplace Notice

The Marketplace Notice must be provided by employers that are subject to the Fair Labor Standards Act (FLSA). In general, the FLSA applies to employers that employ one or more employees who are engaged in, or provide goods for, interstate commerce. For most firms, a test of not less than $500,000 in annual dollar volume of business applies. The DOL provides an online tool to help employers determine whether they are subject to the FLSA. If an employer is subject to the FLSA, it must provide a Marketplace Notice regardless whether it is a large employer subject to the play-or-pay mandate or whether it offers grandfathered or non-grandfathered health coverage (or no coverage at all).

The Marketplace Notice must be distributed to all employees, regardless of their enrollment status or their part-time or full-time status. Spouses and dependents are not required to receive a separate Notice. The Marketplace Notice must inform the employee:

  • of the existence of the Marketplace, including a description of the services provided by the Marketplace and contact information for the Marketplace;
  • that the employee may be eligible for a premium tax credit if the employee purchases a qualified health plan through the Marketplace; and
  • that if the employee purchases coverage through the Marketplace, the employee may lose any employer contribution to a health plan offered by the employer, and all or a portion of such contribution may be excludible from income for federal income tax purposes.

To satisfy the content requirements, two model Marketplace Notices are now available on the Department of Labor's website. There is one model for employers who do not offer a health plan and another model for employers who do offer coverage to some or all employees. The two model Notices are generally the same, but the model for employers that offer health coverage would also describe which of its employees are eligible for coverage, which dependents are eligible for coverage, and whether coverage provides minimum value and is intended to be affordable. It also contains an optional page where the employer can provide information corresponding with the Employer Coverage Tool attached to the "Application for Health Coverage & Help Paying Costs" (for a copy, click here).

Employers must provide the Marketplace Notice to their current employees by October 1, 2013. The Notice also must be provided to new-hires on and after October 1, 2013. For new-hires, the Notice will be considered timely in 2014 if it is provided within 14 days of their start date. The Notice may be provided by first class mail, or electronically under the DOL's electronic disclosure safe harbor rules, which generally permit email or other electronic disclosure for employees who have computer access as a regular part of their job functions or consent to electronic disclosure.

Model COBRA Notice

The DOL also revised the model COBRA election notice, noting that individuals eligible for COBRA also may want to consider and compare health coverage available through the Marketplace. The revised COBRA election notice informs qualified beneficiaries that other coverage options are available through the Marketplace, and that being eligible for COBRA does not impact an individual's eligibility for a tax credit through the Marketplace. It also removes the paragraph about preventing a gap in creditable coverage, since plans will not be permitted to impose preexisting condition limitations beginning January 1, 2014. (Plans already are prohibited from applying preexisting condition exclusions on children under age 19.) For a description of this and other changes that will be effective in 2014, click here.

As with the earlier COBRA model notice, use of the revised model, appropriately completed, will be considered by the DOL to be good faith compliance with the election notice requirements of COBRA.

* For additional Affordable Care Act resources, visit AGC’s members’-only webpage at www.agc.org/HealthCareReform.

Editor's note: This article was written by guest authors Kelly Pointer and Joy Sellstrom. Kelly Pointer is an associate in the Employee Benefits & Executive Compensation Department of Seyfarth Shaw LLP. Her practice focuses on qualified retirement and 403(b) plans and health and welfare plans. Ms. Pointer’s qualified retirement and 403(b) plan experience includes matters related to design and implementation, maintenance and ongoing administration, ERISA and tax code compliance, reporting and disclosure requirements, and plan termination. She also assists clients with compliance issues through the IRS voluntary correction program and advises on establishing and maintaining fiduciary structures and processes. Ms. Pointer’s health and welfare plan experience includes matters related to consumer-driven health arrangements, cafeteria plan requirements, domestic partner benefits, compliance with COBRA, HIPAA privacy and portability, and health care reform. Joy Sellstrom is senior counsel in the Employee Benefits Department and has focused her practice on employee benefits and executive compensation for over 25 years, specializing in health and welfare benefits. Ms. Sellstrom has been Co-Chair of the Firm’s Welfare Benefits Practice Group for the past 10 years and is a frequent author on health care reform issues. In addition to health care reform, she advises employers on HIPAA privacy and portability, COBRA, wellness programs, consumer-driven health arrangements (including health reimbursement arrangements and health savings accounts), domestic partnership issues and funding mechanisms for both active and retiree health programs (e.g. VEBAs and 401(h) accounts). Her practice also includes reviewing and preparing vendor agreements, and counseling regarding governmental audits.

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.


Affordable Care Act Resources Available to AGC Members

Implementation of the Affordable Care Act (ACA) has been challenging for many employers. To offer assistance to construction employers, AGC has dedicated a page on its website to providing compliance resources on the ACA. The members-only page includes links to white papers, a webinar and government resources. AGC will update the page routinely as new and relevant information becomes available.

Implementation of the Affordable Care Act (ACA) has been challenging for many employers. To offer assistance to construction employers, AGC has dedicated a page on its website to providing compliance resources on the ACA. The members-only page includes links to white papers, a webinar and government resources. AGC will update the page routinely as new and relevant information becomes available.

AGC has been working with the law firm of Seyfarth Shaw to make ACA-related information readily available to members. With one of the largest employee benefits groups in the country, Seyfarth Shaw has assembled a cross-departmental team that is focused on how the passage of health care reform will impact businesses in various types of industries. As a result, the team has issued a number of “Client Alerts” to keep employers up to date on the latest regulatory guidance regarding the ACA. AGC has made all of Seyfarth Shaw’s relevant alerts available on its dedicated ACA webpage.

Also available is a link to AGC’s webinar series, The Affordable Care Act: The Impact of Health Care Reform on Your Construction Business, recorded in three parts. Part 1, Employer-provided Health Care… Then and Now, provides an overview of the key implementation dates of the ACA, the overall impact of the law on various types of health plans and why employers offer health care in the first place. It also discusses the impact of the individual mandate on business – an often disregarded issue for employers. Part 2, Pay or Play… All about the Employer Mandate, provides answers to the most raised questions by employers such as how to determine coverage under the law, definition of full-time employee, dealing with seasonal workers and more. Part 3, The Future of the Insurance Marketplace, allows participants to get an inside look at the future of the insurance marketplace, including how insurance providers are adapting their plans and cost structures as a result of the new requirements, as well as techniques to use when shopping around for health insurance plans.

For those who are interested in hearing from the government officials themselves, the page provides several links to fact sheets, FAQs and various guidance documents issued by the Internal Revenue Service, the Department of Health and Human Services and the Department of Labor – the three federal agencies tasked with providing guidance and enforcing the ACA.

AGC members can directly access the webpage at www.agc.org/HealthCareReform. Users must login to the AGC website, as these resources are available to AGC members only. Frequent users of the Labor & HR Topical Resources section of the AGC website may access the ACA information through that resource. (See primary category “Other HR Issues” and secondary category “Health Care Reform.”)


Wage & Hour Division Issues Davis-Bacon Guidance on Survey Crew Members and Conformance Request Process

In two All-Agency Memorandums (AAMs), the U.S. Department of Labor’s Wage and Hour Division (WHD) provides new guidance to contracting agencies with construction work covered by the Davis-Bacon and Related Acts.

In two All-Agency Memorandums (AAMs), the U.S. Department of Labor’s Wage and Hour Division (WHD) provides new guidance to contracting agencies with construction work covered by the Davis-Bacon and Related Acts. One AAM explains when survey crew members are considered laborers or mechanics under the Davis-Bacon Act. The other clarifies how proposed wage rates should be determined during the conformance review process, the process by which contracting agencies request additional classifications or rates that are not listed on the Davis-Bacon wage determination. Contractors and subcontractors should consider both memorandums when requesting rate and/or classification changes to an applicable Davis-Bacon wage determination.

All-Agency Memorandum 212

In AAM 212, WHD responds to a request that field supervisors performing on-site work that is integrated with construction work covered by the Davis-Bacon Act be recognized as a subclassification of operating engineer. As a result, WHD clarified the application of Davis-Bacon standards to survey crew members who may be employed as laborers and mechanics on Davis-Bacon projects. The guidance does not replace but supplements guidance provided in previous AAMs on the subject.

To ensure that survey crew members are recognized appropriately as laborers or mechanics on Davis-Bacon-covered projects, WHD has determined specific requirements that contracting agencies should consider when processing conformance requests. The guidance states that “survey crew members who perform primarily physical and/or manual work immediately prior to or during actual construction, and in direct support of construction crews, will be considered laborers or mechanics when employed on the site of work.” Spending 50% or more of their time performing such work will generally satisfy the primary duty requirement, providing the worker is not an exempt professional, executive, or administration employee according to Fair Labor Standards Act. In addition, the guidance further clarifies that the determinant for whether a worker is a “laborer or mechanic” as defined under the Davis-Bacon Act depends on whether the actual duties performed are manual or physical in nature. This includes workers who use tools or who are performing the work of a trade. The guidance advises contracting agencies to accept requests to add classifications to Davis-Bacon wage determinations for survey crew members who meet these requirements.

All-Agency Memorandum 213

AAM 213 specifies that the proposed wage rate as requested during the conformance process bear a “reasonable relationship” to other wage rates contained in the same wage determination. To determine a “reasonable relationship,” contractors should compare the requested additional classification to other classifications on the same wage determination, within the same category. The four categories for contractors to consider include skilled crafts, laborers, power equipment operators, and truck drivers. In addition, the proposed work in question should not be performed by any other classification in the wage determination. In the past, WHD has generally approved conformance requests when the proposed wage rate was not less than the rate listed for the lowest classification in the respective category on the wage determination.

When proposing rates for an additional classification, the guidance further requires that the originating source of the existing wage rate is considered. For example, if a wage determination contains predominantly union prevailing wage rates for skilled classifications, consider the union sector skilled classifications in the wage determination when suggesting a rate. The same applies for non-union prevailing wage rates. The guidance states that if the wage rates in the applicable category are half union and half non-union, then it is typically appropriate to look to the lowest union rate and highest non-union rate, assuming the union rates are higher.

The AAM states that contracting agencies should take the following steps when requesting a wage rate change:

  1. Determine the category (skilled crafts, laborers, power equipment operators, or truck drivers) of the classification which is being conformed;
  2. Determine, for that category, whether the union or non-union rates prevail in the existing wage determination;
  3. After reviewing the entirety of the rates within the appropriate sector in the applicable category, determine a rate that bears a reasonable relationship to those rates on the wage determination; and then
  4. Determine whether any of the considerations identified in AAM 213 apply. For example, if the classification being conformed is a skilled classification and some of the wage rates for skilled classifications in the wage determination are lower than the rates for laborers, then the existing skilled classification rates that are higher than the laborer rates should be used to determine the proposed rate. If the classification which is being conformed is a laborer classification, the existing common laborer rate should be used as a benchmark.

WHD advises contractors and contracting agencies that are seeking new classifications and wage rates to not rely on a wage determination or conformance granted to another party, or to the same party for work performed at the same location, regardless of the similarity of the work in question. In conjunction with AAM 213, WHD has provided a series of frequently asked questions for contractors and contracting agencies.

Generally, in order to improve the accuracy of classifications and wage rates listed in Davis-Bacon wage determinations, AGC encourages construction contractors to participate in the Davis-Bacon wage survey process. Review AGC’s guide for contributing to the accuracy of published prevailing wage rates in construction for additional information. For additional resources on the Davis-Bacon Act and the conformance process, visit AGC Labor & HR Topical Resources webpage. The primary category is “Compensation” and the secondary category is “Davis-Bacon Act.”


Interim Final Rule Issued on Prevailing Wages for H-2B Program

The U.S. Department of Labor (DOL) and the U.S. Department of Homeland Security (DHS) issued a joint interim final rule regarding prevailing wages for the H-2B guestworker program. The rule establishes a new methodology for calculating prevailing wages under the H-2B low-skilled, nonagricultural guestworker program. It took effect on April 24, the date it was published in the Federal Register.

The U.S. Department of Labor (DOL) and the U.S. Department of Homeland Security (DHS) issued a joint interim final rule regarding prevailing wages for the H-2B guestworker program. The rule establishes a new methodology for calculating prevailing wages under the H-2B low-skilled, nonagricultural guestworker program. It took effect on April 24, the date it was published in the Federal Register.

According to the rule, DOL will now use either the Occupational Employment Statistics (OES) wage survey, collective bargaining agreements, the Davis-Bacon Act (DCA), the Service Contract Act (SCA), or employer-provided surveys to determine H-2B prevailing wages. In addition, the prevailing wage will be based on the arithmetic mean wage listed in the OES survey for all persons in the occupation in question. Both DOL and DHS state that the OES survey is the most appropriate determinant of the prevailing wage because it is “among the largest, most comprehensive, and continuous statistical survey programs of the Federal Government.” The OES survey collects data from more than 1 million establishments and provides salary information for all occupations in the Office of Management and Budget’s standard occupational classification system.

The rule also permits, but does not require, employers to use the DBA or SCA prevailing wage (or higher) rate, if applicable, and authorizes employers to use higher DBA or SCA rates if they choose to do so. However, employers must comply with the DBA or SCA, whichever is applicable, if H-2B workers are working on a DBA- or SCA-covered contract.

The process is different for H-2B workers who are subject to collective bargaining agreements. Under the rule, DOL will use the prevailing wage set by the applicable collective bargaining agreement where that agreement was reached after negotiations between the union and the employer.

DOL may also use employer-provided wage surveys to determine the prevailing wage rate if the data is collected within 24 months of the date of submission. If used, employers must also provide specific information about the survey methodology so that DOL may ensure data accuracy and validity.

For additional information and assistance, employers may use DOL’s H-2B e-laws advisor. For general immigration compliance resources, please visit AGC’s Labor & HR Topical Resources webpage. The primary category is “Other Legal Resources” and the secondary category is “Immigration and Employment Eligibility.”


AGC Opposes Proposed Survey of Workers on Independent Contractor Issues

On March 12, 2013, AGC submitted comments to the U.S. Department of Labor’s Wage and Hour Division (WHD) concerning its proposal to collect information from workers about their employment experiences and knowledge of laws regarding the misclassification of independent contractors as employees. The proposed survey would involve prescreening nearly 18,000 households leading to over 10,000 interviews of workers from various industries over a two-year period. Since construction has often been mentioned by the WHD as an industry of focus with regard to worker misclassification enforcement, it is expected that construction workers will be targeted for survey participation.

On March 12, 2013, AGC submitted comments to the U.S. Department of Labor’s Wage and Hour Division (WHD) concerning its proposal to collect information from workers about their employment experiences and knowledge of laws regarding the misclassification of independent contractors as employees. The proposed survey would involve prescreening nearly 18,000 households leading to over 10,000 interviews of workers from various industries over a two-year period. Since construction has often been mentioned by the WHD as an industry of focus with regard to worker misclassification enforcement, it is expected that construction workers will be targeted for survey participation.

In the comment letter, AGC addressed the construction industry’s legitimate business need for the use of independent contractors in certain circumstances. AGC also questioned the need for the proposed survey, provided alternative suggestions for rooting out intentional misclassification, and detailed the unconsidered disruption and costs that may affect contractors should their workers be asked to participate.

Many in the business community believe that the WHD’s purpose for creating the proposed survey is to justify new “Right to Know” regulations that would require employers to provide written notice to all workers defining their classification status as an independent contractor or employee. In addition, the anticipated regulations would require written notification of an employee’s classification as exempt or non-exempt, and the decision factors used to make the determination. At this time, according to the most recent regulatory agenda, the “Right to Know” regulations are on-hold but remain in WHD’s long-range planning schedule.

For additional information on determining independent contractor status, please visit AGC’s Labor and HR Topical Resources Webpage. The primary category is “Other Legal Issues” and the secondary category is “Independent Contractors.”


Union Contractors to Hold Next Conference Call on June 19

The next quarterly conference call of AGC of America’s Union Contractors Committee will take place on June 19, 2013, at 3:00 p.m. Eastern Daylight Time. It will include reports and a roundtable discussion of collective bargaining activities and other local and national developments relevant to union contractors. Participation is open to all AGC-member union contractors and their chapter staff.

The next quarterly conference call of AGC of America’s Union Contractors Committee will take place on June 19, 2013, at 3:00 p.m. Eastern Daylight Time. It will include reports and a roundtable discussion of collective bargaining activities and other local and national developments relevant to union contractors. Participation is open to all AGC-member union contractors and their chapter staff.

To register for the call, click here. Call-in information will be sent one or two weekdays prior to the call to those who register using the above link.

Plans are underway to begin holding similar conference calls or web meetings of AGC’s Open Shop Committee. Details will be announced on the Open Shop Contractors e-Forum and in this newsletter when available.

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


NLRB Controversies and Other Hot Topics Covered at AGC’s 29th Annual Construction Labor Law Symposium

The AGC Labor and Employment Law Council held its 29th Annual Construction Labor Law Symposium on April 18 and 19 in Washington, D.C. 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 29th Annual Construction Labor Law Symposium on April 18 and 19 in Washington, D.C. Attorneys and chapter labor relations managers from across the country attended to learn about the latest developments in construction labor and employment law.

 
Brian Hayes of Ogletree Deakins

Recent activities by and involving the National Labor Relations Board (NLRB or Board) were a major topic of discussion at the symposium. Guest speaker Brian Hayes, now a partner in the law firm Ogletree Deakins, spoke of the NLRB’s controversial decisions and rulemaking during his term as a Board member. Hayes served on the Board from June 2010 to December 2012, often as the sole Republican of the five-member Board. He described the Board as engaging in a “semantic witch hunt” when deciding cases addressing employers’ personnel policies – parsing the policies to find words that could somehow be interpreted by some hypothetical employee in a way that infringes on employee rights under the National Labor Relations Act. The Board’s stretching and twisting of language in such policies to try to find a problem is not an efficient use of government resources, he said.

Council member Jeff Wray of Fulbright & Jaworski told a similar tale of recent Board decisions. He reviewed several significant decisions in which the Board has expanded its interpretation of employee rights, including cases involving employer policies on confidentiality, workplace investigations, social media, “at-will” employment, off-duty access, and mandatory arbitration. He offered practical advice in the wake of these decisions, including consulting recent NLRB Division of Advice Memoranda before drafting any such policies. AGC members can access Wray’s handout in AGC’s online Labor and HR Topical Resources library under the category “Unions/NLRA” and subcategory “Protected Concerted Activity.”

 
NLRB Acting General Counsel Lafe Solomon

Guest speaker Lafe Solomon, the NLRB’s acting general counsel, offered a different perspective. He provided information and thoughts on the impact of the Noel Canning case. The D.C. Circuit in that case recently held that three “recess appointments” to the Board made by Pres. Obama in January 2012 were invalid, calling into question the validity of all decisions issued by the Board since then and perhaps since as early as August 2011. Solomon noted that about 90 percent of cases at the NLRB are still settling as usual, suggesting that many respondents are choosing to settle now rather than wait for appointment of a new Board which, two years down the road, might well reach the same conclusion that the current Board would reach today. He said that he is hoping for a political solution to the Board appointments controversy, as a judicial solution could take a long time. The NLRB on April 25 petitioned the Supreme Court to review the case. The next step is a response by the respondent and a decision by the Court as to whether it will take on the case. If the Court grants the petition for review, it is unlikely to issue a decision on the merits until sometime next year.

Other topics covered at the symposium are listed below. Handouts from presentations on those topics are found in the Labor & HR Topical Resources library in the areas indicated in parentheses.

  • Primer on Strikes and Picketing (main category “Unions/NLRA,” subcategory “Picketing & Reserved Gates”);
  • Update on 8(f)-to-9(a) Conversion (main category “Collective Bargaining,” subcategory “Collective Bargaining Agreements: 8(f) vs. 9(a)”);
  • State of the Law on Settlements…and Tips to Make Them Stick (main category “Other Legal Issues,” subcategory “Employment Law [General]”);
  • Current Labor Arbitration Issues Affecting Construction Employers (main category “Other Legal Issues,” subcategory “Employment Law [General]”);
  • Current Issues Under the Americans with Disabilities Act Affecting Construction Employers (main category “EEO,” subcategory “Americans with Disabilities Act”).

Along with Solomon and Hayes, guest speakers also included Peggy Mastroianni, Legal Counsel with the Equal Employment Opportunity Commission, and Randy Johnson, Senior Vice President for Labor, Immigration and Employee Benefits at the U.S. Chamber of Commerce. 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, make sure that they are members of the Council. To view a list of current Council members, click here. For information about Council membership, click here or contact Denise Gold at goldd@agc.org or (703) 837-5326.

 
Guest Speaker Peggy Mastroianni, Legal Counsel for
the Equal Employment Opportunity Commission
 
Charles E. Murphy Keynote Speaker Randy Johnson of the
U.S. Chamber of Commerce


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