AGC's Human Resource and Labor News - Sept. 26, 2013 | Issue No. 5-13 (Print All Articles)

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AGC to Hold Webinar on OFCCPís New Veteran & Disabilities Rules Nov. 7

New AGC Manual Coming Soon

On Nov. 7, 2013, AGC will host a webinar on the Office of Contract Compliance Programs’ (OFCCP) recently announced final rules regarding veterans and individuals with disabilities.  Both rules expand the affirmative-action obligations of direct federal contractors and their subcontractors with regard to the two protected groups.  The webinar will be held at 2:00 p.m. EST.

On Nov. 7, 2013, AGC will host a webinar on the Office of Contract Compliance Programs’ (OFCCP) recently announced final rules regarding veterans and individuals with disabilities.  Both rules expand the affirmative-action obligations of direct federal contractors and their subcontractors with regard to the two protected groups.  The webinar will be held at 2:00 p.m. EST.

The new rules update regulations under the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA) and Section 503 of the Rehabilitation Act of 1973. Both rules will go into effect on March 24, 2014.  The VEVRAA rule requires contractors to annually adopt a hiring benchmark of up to 8 percent.  The Section 503 rule introduces a utilization goal for federal contractors and subcontractors of 7 percent per job category.

During the webinar, attorney and co-author of AGC’s Affirmative Action Manual for Construction will highlight the changes between the current requirements and the new ones, as well as answer the following questions for attendees:

  • What are the differences between the existing, proposed and final regulations?
  • What are the required five new data points on veteran and disabled applicants and hires and how should they be collected and maintained?
  • What are OFCCP’s new expanded recordkeeping requirements?
  • Are there new outreach and training requirements?
  • How should my company implement OFCCP’s new pre- and post-offer requirements for self-identification as a veteran or disabled?
  • What are OFCCP’s enforcement practices?
  • How are these two rules applicable to my construction company?
  • What else is on the horizon from OFCCP?

Webinar registrants will also be able to co-order AGC’s new Affirmative Action Manual for Construction – 3rd Edition for a special discounted price of $30.  The manual is currently being revised to incorporate the new regulatory changes and will soon be available for general sale through AGC’s online bookstore.

For more information or to register, visit www.agc.org/OFCCPwebinar.


OFCCPís New Affirmative Action Rules Effective March 24, 2014

On Sept. 24, the U.S. Department of Labor’s Office of Federal Contract Compliance Program’s (OFCCP) long-anticipated final rules on veterans and individuals with disabilities (IWD) were posted in the Federal Register.  Both rules increase the affirmative action requirements of direct federal contractors and subcontractors.  The agency pre-released each of the final rules in August but announced that they would not go into effect until 180 days after being published. The effective date of both rules is March 24, 2014.  However, for contractors with a written affirmative action program in place at that time, the affirmative action program requirements do not go into effect until the beginning of the next plan year.

On Sept. 24, the U.S. Department of Labor’s Office of Federal Contract Compliance Program’s (OFCCP) long-anticipated final rules on veterans and individuals with disabilities (IWD) were posted in the Federal Register.  Both rules increase the affirmative action requirements of direct federal contractors and subcontractors.  The agency pre-released each of the final rules in August but announced that they would not go into effect until 180 days after being published. The effective date of both rules is March 24, 2014.  However, for contractors with a written affirmative action program in place at that time, the affirmative action program requirements do not go into effect until the beginning of the next plan year.

Although AGC supports OFCCP’s goals and objectives, AGC is disappointed with the agency’s decision to finalize the two regulations, in particular due to the lack of need for the rules and the costs associated with implementing and complying with the new requirements.  However, after several meetings with government agencies, legislative efforts and press campaigns, AGC persuaded OFCCP to reduce the regulations, as proposed, by more than 50 percent.  While contractors will be required to do more than is currently required, the impact on contractors is minimal compared to what was suggested in the proposed rules.  (For more on the veterans proposed rule, click here.  For more on the disability proposed rule, click here.)

The veterans rule, which updates regulations implementing the Vietnam Era Veterans’ Readjustment Assistance Act  of 1974 (VEVRAA), prohibits discrimination and requires contractors to take affirmative action in all personnel practices regarding covered veterans.  While VEVRAA originally covered only veterans from the Vietnam Era, coverage was later extended to disabled veterans, Armed Forces service medal veterans, recently separated veterans, and other protected veterans who served during a war or in a campaign or expedition for which a campaign badge has been authorized.  Previously, there were two sets of regulation applicable to VEVRAA.  One for contracts entered into before December 1, 2003, and one for contracts entered into after, with different thresholds for coverage.  Since there is a belief that there are no pre-December 1, 2003, contracts currently in existence, the new regulations adopt an across-the-board coverage threshold of $100,000 or more.  In addition, covered contractors or subcontractors with 50 or more employees are required to develop and maintain a written VEVRAA affirmative action program.

The disabilities rule, which updates Section 503 of the Rehabilitation Act of 1973 (Section 503), prohibits discrimination and requires contractors to take affirmative action in all personnel practices for qualified IWDs.  These requirements apply to contractors and subcontractors with a covered federal contract or subcontract valued in excess of $10,000.  In addition, covered contractors and subcontractors with contracts valued at $50,000 or more and 50 or more employees must develop and maintain a written Section 503 affirmative action program.

The two rules are mostly parallel; however, there are some aspects of each rule that are unique.

Recordkeeping Requirements

The proposed rules would have extended several recordkeeping requirements from two to five years, particularly pertaining to the affirmative action program requirements.  However, the final rule limits the extension to three years.

Equal Opportunity Clause (E.O. Clause)

Currently, each contracting agency and contractor must reference the E.O. Clause in each covered contract and subcontract as required by the Federal Acquisition Regulation.  While the proposed rule required contractors to list the E.O. Clause in its entirety in each contract, the final rule allows contractors to continue to merely reference the clause in the contract, as long as the reference is followed by the following bolded text:  "This contractor and subcontractor shall abide by the requirements of 41 CFR 60-300.5(a). This regulation prohibits discrimination against qualified 49 protected veterans, and requires affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified protected veterans."

Written Reasonable Accommodation Procedures (Disabilities Rule Only)

The proposed rule required contractors to develop and implement written reasonable accommodation procedures.  This required, among other things, a written confirmation acknowledging receipt of every reasonable accommodation request and, for all denied requests, and a denial in writing along with the basis for the denial along with the decision maker’s name.  In addition, contractors were to be required to post a notice online notifying applicants who may need a reasonable accommodation that they are entitled to one.  The final rule does not adopt these requirements.  It only suggests them as a “best practice.”

Written Affirmative Action Program

As stated, the requirement to have a written affirmative action program applies only to covered contractors that meet the dollar threshold ($100,000 for VEVRAA and $50,000 for Section 503) and have 50 or more employees.  For both rules, the written affirmative action program includes the obligation to offer individuals the opportunity to self-identify as a protected veteran or IWD, periodic reviews of personnel policies and physical/mental job qualifications, internal and external policy dissemination requirements, training for all employees involved in the hiring and disciplinary process, collection and maintenance of hiring and employment data regarding veterans and IWDs, and the establishment of hiring benchmarks and utilization goals.  According to the final rule, the full affirmative action program, absent the data metrics, must be made available to any employee or applicant for inspection upon request.  The location and hours during which the program is available must be posted at each establishment.

New Hiring Benchmark and Utilization Goal

Probably the most notable update to the affirmative action program requirements of the regulations is the adoption of a hiring benchmark for veterans and a utilization goal for IWDs.  OFCCP did not agree with AGC’s argument regarding the overall lack of need for requiring benchmarks or goals, as federal data show that veterans are already more likely to be employed in construction than non-veterans and that IWDs are as likely to be employed in construction as people without disabilities.  As a result, the hiring benchmark and goal were adopted in the final rule.

For veterans, the final rule gives contractors the option of establishing their own benchmark using a combination of national, state and local data, or setting the benchmark equal to the national percentage of veterans in the civilian labor force – currently eight percent.  The proposed rule required a benchmark for each establishment; however, after several discussions regarding the number of establishments maintained by construction contractors, the requirement to establish the hiring benchmark for each establishment was eliminated.  As a result, the hiring benchmark may be applied across the entire workforce.

For IWDs, the proposed rule suggested a seven percent utilization goal per establishment with a two percent utilization goal for individuals with severe disabilities per establishment.  While the seven percent goal was adopted in the final rule, the two percent goal was eliminated.  According to the final rule, contractors with more than 100 employees must apply the goal using the same job groups established for utilization analyses under Executive Order 11246. In some cases, the nine EEO-1 job categories may be used (i.e., officials/managers, professionals, technicians, sales workers, administrative support staff, craft workers, operatives, laborers/helpers, service workers.  Contractors with fewer than 100 employees have the option of applying the goal across the entire workforce.

Invitation to Self-Identify 

Under both regulations, contractors are already required to offer applicants the opportunity to self-identify as a protected veteran and/or IWD post-offer.  The proposed rules extended this obligation to the pre-offer stage.  They also required contractors to inquire about reasonable accommodation when an IWD or protected veteran self-identified as disabled.  OFCCP did not agree with AGC’s objections to contractors being required to offer applicants the opportunity to self-identify as a protected veteran or IWD pre-offer – mainly due to the costs associated with changing manual and electronic applicant tracking systems, a possible conflict with the Americans with Disabilities Act, and the possibility that IWDs may choose not to self-identify as disabled for a number of reasons.  In conjunction with the final rule, OFCCP posted a letter on its website from the Equal Employment Opportunity Commission (EEOC) explaining that offers to self-identify may occur pre-offer as long as the intent is for affirmative action purposes.  For covered veterans, the requirement to inquire about a reasonable accommodation was not included in the final rule.  Instead, OFCCP reverted back to the existing requirements.  However, this is not the case for the Section 503 rule which does require contractors to initiate the discussion and adds additional responsibilities for contractors.  For example, the Section 503 regulations require contractors to initially extend the offer to self-identify as an IWD to employees within one year of the regulation’s effective date and then again once every five years.  Within the five year period, contractors must remind employees of their ability to self-identify as an IWD at anytime, should their disability status change.  Also, for applicants or employees who don’t self-identify as an IWD, contractors are now permitted to identify a person’s disability status if it is known or obvious, as is done under Executive Order 11246 with regard to race and gender.

Required Content of Affirmative Action Programs

In addition to expanding the self-identification invitation obligations of contractors, both the VEVRAA and the Section 503 proposed rules attempted to expand – from periodically to annually – the requirement to review and modify personnel processes.  The proposed language included obligations to document, for each applicant or employee, all vacancies, training programs and promotions for which the applicant or employee was considered.  In addition, contractors were to provide a written description of accommodations considered and a statement of reason for rejection, to be made available to the applicant or employee upon request.  None of these proposed changes were adopted in the final rule.

AGC was also effective in eliminating the “build-a-file” requirement from the proposed rule, which would have required annual reviews of job descriptions for physical and mental qualifications.  AGC’s comments to OFCCP stated that a thorough and thoughtful review of job descriptions takes time and often requires input from many departments within a company.  As a result, OFCCP reverted back to the existing requirement to conduct periodic reviews of job descriptions.

External and Internal Dissemination of Policy, Outreach and Recruitment

Both proposed rules would have required contractors to establish a minimum of three linkage agreements with external recruitment sources that specialize in veteran and/or disabled training or placement.  AGC was effective in explaining to OFCCP the burden that would be imposed on contractors to establish and maintain three linkage agreements per establishment – particularly when each establishment could mean each jobsite.   As a result, OFCCP eliminated the requirement to establish linkage agreements and reverted back to the existing regulations with regard to outreach efforts, including efforts mandated by statute for the recruitment of veterans.

OFCCP also proposed requiring contractors to post jobs with state and local employment services in the manner “required” by each office and include, and update annually, the name and address of each hiring location and hiring official.  The final rules adopt the term “permitted” instead of “required.” Both rules also now allow contractors to list, and update as-needed, the name and contact information, of any company representative, such as an HR representative, who can answer questions about the job posting.  Additionally, contractors must send written notification of the company’s policy regarding affirmative action to all subcontractors including subcontracting vendors, suppliers, and union hiring halls (if applicable) requesting appropriate action on their part.

With regard to internal dissemination, per the final rules, contractors are not required to conduct annual meetings with staff to explain the intent of the affirmative action policy as proposed.  Instead, contractors must include the policy in the company’s policy manual or make otherwise available to employees.

Training

Both proposed rules included extensive training requirements.  Training was to be conducted for each rule independently, and for all staff.  Subjects to be covered included the benefits of employing protected veterans and IWDs, appropriate sensitivity toward protected veterans and IWDs, and the legal responsibilities of the contractor and its agents with regard to reasonable accommodation and related rights.  The proposed rules would have required contractors to document and maintain for three years the specific subject matter(s) covered in the training, who conducted the training, who received the training, when the training took place, and any associated training materials.  The final rules reverted back to the existing regulations that require training only for personnel involved in the recruitment, screening, selection, promotion, disciplinary, and related processes.

Data Collection Analysis

Both proposed rules required contractors to collect and maintain 10-11 new data points on an annual basis pertaining to applicants and new hires. The final rules adopted just five of the points:

(1) The number of applicants who self-identified as protected veterans or IWDs, or who are otherwise known as such;
(2) The total number of job openings and total number of jobs filled;
(3) The total number of applicants for all jobs;
(4) The number of protected veteran or disabled applicants hired; and
(5) The total number of applicants hired.

More Information

Complete, side-by-side analyses of all changes from the existing to the final regulations are available on OFCCP’s website. (VEVRAA Comparison / Disability Comparison)

There are several resources available on the OFCCP website to help contractors comply with the requirements of the new rules.  These resources include fact sheets and FAQ documents for both the VEVRAA and Section 503 rules.  Although not intended to be a direct resource for contractors, OFCCP’s newly revised reference manual for its auditors, the Federal Contracting Compliance Manual, is available to contractors as well.

AGC is also making compliance assistance resources available to contractors by updating its Affirmative Action Manual for Construction and hosting a webinar detailing the requirements and impact of the rules on the construction industry.  For more information on the webinar or to register, visit www.agc.org/OFCCPwebinar.

In addition, a session on the new rules has been added to the schedule for AGC’s 2013 Construction HR & Training Professionals Conference.  The conference will be held Oct. 16-17, in Chicago, Ill.  For more information or to register, visit www.agc.org/trainingHRconference.


Appeals Court Reinstitutes Michigan Law Banning Government-Mandated PLAs

The U.S. Court of Appeals for the Sixth Circuit (Ky., Mich., Ohio, Tenn.) has upheld a Michigan statute that precludes state agencies from requiring or prohibiting their construction contractors and subcontractors to adhere to a project labor agreement (PLA).  The decision overturns a district court ruling that the Michigan Fair and Open Competition in Government Construction Act was invalid as preempted by the National Labor Relations Act (NLRA).

The U.S. Court of Appeals for the Sixth Circuit (Ky., Mich., Ohio, Tenn.) has upheld a Michigan statute that precludes state agencies from requiring or prohibiting their construction contractors and subcontractors to adhere to a project labor agreement (PLA).  The decision overturns a district court ruling that the Michigan Fair and Open Competition in Government Construction Act was invalid as preempted by the National Labor Relations Act (NLRA).

Since the U.S. Supreme Court’s landmark 1993 Boston Harbor decision, the primary issue in cases addressing the validity of laws mandating or prohibiting PLAs in government contracting is whether the government, through the law, is acting in a proprietary or a regulatory capacity.  When the government is acting in a proprietary capacity, it may act as any other market participant may and its actions are not preempted by the NLRA.

The present court found the D.C. Circuit’s 2002 Allbaugh decision -- which upheld Pres. George W. Bush’s executive order restricting government-mandated PLAs on federal and federally assisted projects -- to be directly on point.  Quoting the Boston Harbor decision, the Allbaugh court held that the relevant distinction in determining whether the state is acting in a proprietary or regulatory  manner is  whether the government “‘‘acts just as a private contractor would act’... or instead seeks to affect conduct ‘unrelated to the employer’s performance of contractual obligations.’”  The court here noted that the Michigan statute is almost identical to Pres. Bush’s executive order in its effect on PLAs.  The court further observed that Allbaugh and various other circuit court cases have drawn a similar line, holding that, to be proprietary, the law “must be aimed to achieve a proprietary goal and must be limited to the furtherance of that goal.” The Michigan statute “falls on the proprietary side of that line.”

The court found that the state is seeking to preserve taxpayer resources by encouraging open competition among potential contractors and subcontractors.  The Act does not ban PLAs and it allows contractors who enter into PLAs to compete for public contracts on equal footing with contractors that do not, according to the court.  “Private entities, including contractors working on government projects, remain free to enter into PLAs,” noted the court.  “The law’s effect is limited to forbidding governmental units from entering into PLAs and then forcing the terms and conditions found within on bidders, contractors, and subcontractors.”

The court rejected labor’s argument that the statute is too broad because it doesn’t require consideration of projects on a case-by-case basis. “Private proprietors can and do act on an across-the-board basis without somehow becoming regulators,” stated the court.  “The legislature permissibly decided that public resources would best be preserved by taking the PLA decision out of the hands of governmental units and leaving it to private contractors.”

Likewise, the court rejected the argument that the statute is too broad because it extends to government contracts funded by private or federal funds.  The court found that the state has a proprietary interest in the efficiency of its projects even if they have outside funding.  In fact, by focusing on state action instead of state funding, the statute allows private projects funded by state grants to use PLAs and further demonstrates that the state’s goal is efficiency in government construction rather than the wholesale elimination of PLAs, said the court.

Because the Act furthers Michigan’s proprietary goal of improving efficiency in public construction projects and is no broader than is necessary to meet those goals, the statue is proprietary and not preempted by the NLRA, held the court.

Mich. Bldg. and Constr. Trades Ccl v. Snyder, Case Nos. 12-1246, 12-2548 (6th Cir., 9/6/12).


AGC Requests Further Clarification of Guidance on Application of Davis-Bacon to Survey Crews

Amidst confusion among contractors and other parties, AGC has formally requested that the U.S. Department of Labor’s Wage and Hour Division (WHD) further clarify the application of the Davis-Bacon Act to Survey Crews.  The request is in response to WHD’s March 2013 issuance of All-Agency Memorandum 212 (AAM 212).  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.”

Amidst confusion among contractors and other parties, AGC has formally requested that the U.S. Department of Labor’s Wage and Hour Division (WHD) further clarify the application of the Davis-Bacon Act to Survey Crews.  The request is in response to WHD’s March 2013 issuance of All-Agency Memorandum 212 (AAM 212).  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.”

AGC's letter explains that while the organization as a whole does not interpret AAM 212 as imposing new requirements on construction contractors, some contractors and other impacted organizations do.  As a result, AGC requests that WHD withdraw AAM 212 and work with the contractor community to develop a revised version.  The letter also advised WHD that the revised version should clarify that there is no presumption of coverage of survey crews as well as clarify any new information that contractors will be expected to collect, maintain and provide in the event of an audit.

For a summary of AAM 212, click here.  For additional resources on the Davis-Bacon Act, visit AGC Labor & HR Topical Resources webpage. The primary category is “Compensation” and the secondary category is “Davis-Bacon Act.”


Union Rights to Access Jobsites Addressed in AGCís First Open Shop Web Meeting

AGC of America held an Open Shop Committee Web Meeting on Tuesday, Sept. 17.  It is the first of what is expected to be quarterly web meetings open and free to all interested AGC members and chapter staff, regardless of committee membership. 

AGC of America held an Open Shop Committee Web Meeting on Tuesday, Sept. 17.  It is the first of what is expected to be quarterly web meetings open and free to all interested AGC members and chapter staff, regardless of committee membership. 

The meeting featured a “Quick Learn” presentation by attorney Rick Samson of Ogletree Deakins about the National Labor Relations Board’s (NLRB) rules concerning union representatives’ rights to access jobsites.  It also featured a report by AGC Associate General Counsel Denise Gold on legal and labor relations developments, such as updates on Davis-Bacon enforcement, affirmative action regulations, the “persuader rule,” NLRB appointments, and project labor agreements.

To listen to an audio recording of the meeting or to view Mr. Samson’s slides, visit AGC’s Labor & HR Topical Resources page, and select “Unions/NLRA” from the first pull-down menu and “Union Access to Jobsite” from the second.

The next web meeting has not yet been scheduled but will be announced on the Open Shop e-Forum and in various AGC newsletters when set.


Collective Bargaining So Far This Year Yields Average First-Year Increase of 2.2 Percent

The Construction Labor Research Council (of which AGC is a member) has released its second report of the year on collective bargaining settlements in the industry.  According to the report, settlements reported between January and September of this year resulted in an average first-year wage-and-benefit increase of 2.2 percent or $1.10.  For newly negotiated, multiyear agreements, the average second year increase was 2.6 percent or $1.31, and the average third-year increase was 2.7 percent or $1.43.  Each of these averages is higher than those negotiated in 2012.  In both years, the most common settlements were between 2.1 and 2.5 percent.

The Construction Labor Research Council (of which AGC is a member) has released its second report of the year on collective bargaining settlements in the industry.  According to the report, settlements reported between January and September of this year resulted in an average first-year wage-and-benefit increase of 2.2 percent or $1.10.  For newly negotiated, multiyear agreements, the average second year increase was 2.6 percent or $1.31, and the average third-year increase was 2.7 percent or $1.43.  Each of these averages is higher than those negotiated in 2012.  In both years, the most common settlements were between 2.1 and 2.5 percent.

On a percentage basis, the region reporting the lowest average first-year increase was the Northwest Region (AAlaska, Idaho, Ore., Wash.) at 1.7 percent.  The region reporting the highest was the East North Central Region (Ill., Ind., Mich., Minn, Ohio, Wis., W.V.) at 2.3 percent.  The craft with the lowest percent first-year increase was the Plasterers at 1.1 percent, and the craft with the highest such increase was the Painters at 2.0 percent.

Consistent with its earlier report in June of this year, CLRC also found that the trend toward negotiating shorter-term agreements has regressed.  Only 43 percent of agreements negotiated so far this year were for one year (as compared to 68 percent in 2011), and 48 percent were for three years or more.

The full report, which contains additional information and graphs, has been sent to the Union Contractors e-Forum and is posted in the Labor & HR Topical Resources area of AGC’s website under the main category “Collective Bargaining” and subcategory “Collective Bargaining Agreement Data.”  The report is a preliminary one, with yearly averages and other data likely to change as additional settlements are added throughout the year.  An updated report is scheduled for release in December.

AGC’s collective bargaining chapters are reminded to please send settlements information to CLRC (clrc@clrc.biz) regularly and promptly after completion of bargaining. Chapters are also advised that CLRC is presently offering a discount of 25 percent or more on custom projects for local chapters of member organizations provided that the project is ordered both before December 6, 2013, and at least three months before completion is needed. Such projects include analyses of local:

  • Market share (click here for a sample)
  • Contract language costs (click here for a sample)
  • Union vs. nonunion wage and fringe benefits comparisons (click here for a sample)
  • Wage and fringe benefits benchmarks (click here for a sample)

For more information about these services, please call CLRC directly at (202) 347-8440.


Union Contractorsí Next Conference Call Will Take Place Oct. 28 and Feature Info on Health Care Reform

AGC of America’s Union Contractors Committee will hold its next quarterly conference call on Oct. 28, 2013, at 3:00 p.m. EDT.  The agenda includes reports on labor law and labor relations developments since the last call (including an update on multiemployer pension reform) and a roundtable discussion of collective bargaining and other activities of interest to union contractors.  In addition, attorney Mark Levengood of Susanin, Widman & Brennan, PC, will talk about the status of health care reform as it applies to employers that contribute to multiemployer health and welfare plans. 

AGC of America’s Union Contractors Committee will hold its next quarterly conference call on Oct. 28, 2013, at 3:00 p.m. EDT.  The agenda includes reports on labor law and labor relations developments since the last call (including an update on multiemployer pension reform) and a roundtable discussion of collective bargaining and other activities of interest to union contractors.  In addition, attorney Mark Levengood of Susanin, Widman & Brennan, PC, will talk about the status of health care reform as it applies to employers that contribute to multiemployer health and welfare plans. 

Participation is free and open to all AGC-member union contractors and their chapter staff regardless of committee membership.  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 that link.

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


NLRB Returns to Full Slate of Confirmed Members

As expected, the Senate confirmed four new appointees to be members of the National Labor Relations Board (“NLRB” or “Board”) on July 30 and reconfirmed the current chairman for a new term.  This brings the Board to a full complement of confirmed members for the first time in a decade.  The Board had been operating with only one confirmed member (Chairman Mark Pearce) and two arguably invalid recess appointees – all three Democrats – since December.

As expected, the Senate confirmed four new appointees to be members of the National Labor Relations Board (“NLRB” or “Board”) on July 30 and reconfirmed the current chairman for a new term.  This brings the Board to a full complement of confirmed members for the first time in a decade.  The Board had been operating with only one confirmed member (Chairman Mark Pearce) and two arguably invalid recess appointees – all three Democrats – since December.

The new members include two Democrats and two Republicans.  The Democrats are Nancy Schiffer, recently retired associate general counsel of the AFL-CIO, and Kent Hirowaza, chief counsel to NLRB Chairman Mark Pearce.  The Republicans are Philip Miscimarra and Harry Johnson, III, both management-side labor lawyers with large law firms.  Along with Pearce, a Democrat, this gives the President’s party a three-to-two majority, as is traditional with a full Board.

Accordingly, and as reported earlier, the new Board is likely to continue the pattern of issuing decisions favoring organized labor and curtailing management rights that has developed throughout the Obama Administration.  With two Republicans in place for the first time in a year, though, we are likely to again see dissenting opinions that are useful in court challenges to Board decisions.  The new Board will also have the opportunity to advance its stalled “quickie election rule,” a regulation that would expedite the election process in union representation cases.

AGC will continue to keep members apprised of significant developments relevant to construction-industry employers.


October 1 Date for Affordable Care Act Notice Looms Despite Employer Mandate Delay

As the new Health Insurance Marketplace mandated by the Affordable Care Act (ACA) prepares to open on Oct. 1, 2013, employers subject to the Fair Labor Standards Act are reminded to distribute a notice of available coverage options in the Marketplace (i.e., Marketplace Notice) to employees.  The notice should be distributed to current employees by Oct. 1 and to new hires within 14 days of the employee’s start date.  This mandate is unaffected by the Administration’s decision to delay enforcement of ACA’s employer mandate.

As the new Health Insurance Marketplace mandated by the Affordable Care Act (ACA) prepares to open on Oct. 1, 2013, employers subject to the Fair Labor Standards Act are reminded to distribute a notice of available coverage options in the Marketplace (i.e., Marketplace Notice) to employees.  The notice should be distributed to current employees by Oct. 1 and to new hires within 14 days of the employee’s start date.  This mandate is unaffected by the Administration’s decision to delay enforcement of ACA’s employer mandate.

Earlier in the year, DOL issued guidance for employers, including a model notice and new model COBRA election notice.  The new COBRA election notice includes information about coverage available through the Marketplace.

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.  In addition, the notice must be provided regardless whether or not  a large employer is subject to the play-or-pay mandate or whether it offers grandfathered or non-grandfathered health coverage (or no coverage at all).  Notices must be provided by first-class mail or electronically under the DOL’s electronic disclosure safe harbor rules.

Employers should pay close attention to the notice requirements to avoid common pitfalls, such as:

  • My insurance provider is taking care of the notice requirement for me.  Be careful!  Employers are required to send the notice to all employees.  You should work with your provider to make sure all employees, not just plan participants, receive the notice.
  • I just looked at the DOL model notice, and we don’t have time to fill out individualized information for every employee.  Don’t worry!  The individualized information requested on page 3 of the DOL model notice for employers who offer health coverage is optional.  See the instructions included in the model notice for more details.
  • I’m sure this requirement doesn’t apply to my small company.  Don’t be so sure!  As detailed above, the requirement applies to nearly all employers, large or small.

For employers that contribute to a multiemployer fund, it may be necessary to request information from the fund administrator for inclusion in the notice.  A sample request letter, along with other resources, is available on AGC’s ACA compliance assistance website at http://www.agc.org/healthcarereform.   For additional information on the notice requirements, click here.

Employers that do not provide the notice will not be fined or penalized, according to a September 11 announcement by the U.S. Department of Labor (DOL).  However, because the notice requirement is a statutory mandate, AGC advises employers considering noncompliance to consult with their attorneys in a timely manner.

Editor’s note:  Contributions to this article were made by Tabatha George.   Tabatha George is an associate with the law firm of Fisher & Phillips LLP.  She specializes in employee benefits, including retirement and welfare plans and healthcare reform.


Labor Department Issues Guidance on Same-Sex Marriages and Employee Benefit Plans

On Sept. 18, the U.S. Department of Labor’s Employee Benefits Security Administration (EBSA) issued new guidance on employee benefit plans as they relate to same-sex marriages.  The guidance is in response to a June 2013 ruling by the U.S. Supreme Court on Section 3 of the Defense of Marriage Act (DOMA).

On Sept. 18, the U.S. Department of Labor’s Employee Benefits Security Administration (EBSA) issued new guidance on employee benefit plans as they relate to same-sex marriages.  The guidance is in response to a June 2013 ruling by the U.S. Supreme Court on Section 3 of the Defense of Marriage Act (DOMA).

In general, the guidance explains that the terms “spouse” and “marriage” in Title I of ERISA and in related department regulations should be read to include same-sex couples legally married in any state or foreign jurisdiction that recognizes such marriages, regardless of where they currently live.  EBSA plans to issue additional guidance in the coming months.

For more information on the case and its impact on employers, click here.


E-Verify Issues New Further Action Notice

For employers that use E-Verify, on Sept. 9, 2013, the Tentative Nonconfirmation Notice (TNC) and Referral letter were combined to create the new Further Action Notice and Referral Date Confirmation.  The new notice provides employees with information and instructions related to TNCs and how to resolve them.

For employers that use E-Verify, on Sept. 9, 2013, the Tentative Nonconfirmation Notice (TNC) and Referral letter were combined to create the new Further Action Notice and Referral Date Confirmation.  The new notice provides employees with information and instructions related to TNCs and how to resolve them.

According to the U.S. Department of Homeland Security (DHS), the agency that governs the use of E-Verify, if a TNC is issued after an employer enters an employee’s data into E-Verify, E-Verify will generate a Further Action Notice that will include the employee’s information as it was entered.  The notice explains the reason for the TNC and the employee’s right to contest it.  Should the employee decide to contest the TNC, the Referral Date Confirmation will appear once the employer has referred the case.  The employer must then select the language of the Referral Date Confirmation, print and give it to the employee.  The Referral Date Confirmation gives the date by which the employee must visit Social Security Administration (SSA) or contact DHS to resolve the issue.

E-Verify is an internet-based system that compares information from an employee's Employment Eligibility Verification form (Form I-9), to data from DHS and SSA.  Additional information on E-Verify is available in the Labor & HR Topical Resources section of the AGC website.  Select “Other Legal Issues” from the pull-down menu and “Immigration & Employment Eligibility” from the second one.  


Why Should You Attend AGCís 2013 Construction HR and Training Professionals Conference?

In the video below, Ron Kubitz, Recruiting & Training Manager for AGC member-company Brayman Construction, talks about AGC's Construction HR and Training Professionals Conference. He describes last year's great experience and explains why you should attend this year's event.

In the video below, Ron Kubitz, Recruiting & Training Manager for AGC member-company Brayman Construction, talks about AGC's Construction HR and Training Professionals Conference. He describes last year's great experience and explains why you should attend this year's event.



With construction companies working with fewer staff and tighter budgets, AGC has created a single conference that will provide two full days of sessions for HR and for training professionals in the construction industry. The conference will continue to offer unique opportunities for HR, training, education, and workforce development professionals in the construction industry.

Walk away from this year’s conference with practical skills that you can begin to implement immediately. Plus, take away insights from colleagues who face the same challenges you see every day.

Review the complete schedule or download the conference brochure.  For conference details, hotel information or to register, visit www.agc.org/trainingHRconference

Make hotel reservations soon as the hotel is nearly sold out!


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