AGC's Human Resource and Labor News - June 5, 2014 / Issue No. 3-14 (Print All Articles)

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ACA Regulatory Updates Prompt New AGC Webinar June 24

There’s no question that compliance with the Affordable Care Act (ACA) will be multifaceted and cumbersome, and U.S. Department of Labor continues to issue regulations that will govern the complex law. These regulations will likely impact the bottom line of every covered construction company. AGC’s webinar, Affordable Care Act Update for Construction Employers, will provide employers with the latest and greatest information regarding the ACA, how it will impact construction companies, and how construction companies should prepare. The webinar will be held on June 24 from 2:00-3:30 PM EDT and is just $79 for AGC members and $99 for non-members.

There’s no question that compliance with the Affordable Care Act (ACA) will be multifaceted and cumbersome, and U.S. Department of Labor continues to issue regulations that will govern the complex law. These regulations will likely impact the bottom line of every covered construction company. AGC’s webinar, Affordable Care Act Update for Construction Employers, will provide employers with the latest and greatest information regarding the ACA, how it will impact construction companies, and how construction companies should prepare. The webinar will be held on June 24 from 2:00-3:30 PM EDT and is just $79 for AGC members and $99 for non-members.

Topics to be covered during the webinar include but are not limited to:

  • Clarifications of the employer mandate requirements of the ACA;
  • Details of the transition relief provided by the employer mandate final regulations;
  • Updates and initiatives involving the use of seasonal workers as they relate to ACA compliance;
  • Impact on employers that contribute to multiemployer health plans;
  • Details of new employer reporting requirements; and
  • Outcome of final regulations for 90-day waiting period limitations.

Last year, attorneys Jack Widman and Mark Levengood of Susanin Widman & Brennan presented the ACA’s compliance requirements for construction employers during AGC’s three-part webinar series. The three-part series provided details of the employer mandate requirements including who is a covered employer, determining large employer status, and more. Widman and Levengood will be returning to provide an update on the information that was provided during that webinar, now that final regulations have been issued. As a bonus, all registrants will receive complimentary on-demand access to the three-part series to watch prior to attending the update webinar.

In addition to regulatory updates, much is occurring with regard to the use of seasonal workers and the ACA – a topic specifically of interest to construction employers. During the webinar, James Young, AGC’s Director of Congressional Relations, will share specifics of the legislative activity that is taking place with regard to seasonal workers and the ACA.

For more information or to register, visit the AGC website.


New COBRA Notices Add Affordable Care Act Info

The Employee Benefits Security Administration of the U.S. Department of Labor (“DOL”) has updated its model notices that inform workers of their eligibility to continue healthcare coverage through the Consolidated Omnibus Budget Reconciliation Act (“COBRA”). The updates, announced May 2, are intended to clarify to workers that, if they are eligible for COBRA continuation coverage when leaving a job, they may instead choose to purchase coverage through the Health Insurance Marketplace under the Affordable Care Act. Click here for the revised Model COBRA Continuation Coverage General Notice and instructions. Click here for the revised Model COBRA Continuation Coverage Election Notice and instructions.

The Employee Benefits Security Administration of the U.S. Department of Labor (“DOL”) has updated its model notices that inform workers of their eligibility to continue healthcare coverage through the Consolidated Omnibus Budget Reconciliation Act (“COBRA”). The updates, announced May 2, are intended to clarify to workers that, if they are eligible for COBRA continuation coverage when leaving a job, they may instead choose to purchase coverage through the Health Insurance Marketplace under the Affordable Care Act. Click here for the revised Model COBRA Continuation Coverage General Notice and instructions. Click here for the revised Model COBRA Continuation Coverage Election Notice and instructions.

At the same time, DOL issued a notice of proposed rulemaking to update regulations addressing the COBRA model notices. Until rulemaking is finalized and effective, DOL will consider use of the model notices available on its website, appropriately completed, to constitute compliance with the notice content requirements of COBRA.

The U.S. Department of Health and Human Services (“HHS”) also announced a special enrollment period for people who are already purchasing COBRA coverage and may not have known about the option to instead get coverage through the Marketplace. HHS published a bulletin on the matter here.

DOL, HHS, and the U.S. Department of Treasury jointly published frequently asked questions about Affordable Care Act implementation also on May 2. Click here to access.

For more information about COBRA, visit AGC’s online Labor & HR Topical Resources library, and select the main category “Compensation” and subcategory “COBRA.” For more information about the Affordable Care Act, select the main category “Other HR Issues” and subcategory “Health Care Reform.” See also the related article “ACA Regulatory Updates Prompt New AGC Webinar.”


Strategies for Recruiting Craft Workers to be Addressed in Free June 16 Web Meeting

If your firm is already experiencing challenges in finding craft workers or is anticipating challenges in the future, join AGC of America’s Open Shop Committee, HR Forum, and Training, Education & Development Forum for a web meeting on June 16 at 2:00 p.m. EDT featuring a presentation on “Best Practices in Recruiting Craft Workers.” Ron Kubitz, Recruiting Manager for Brayman Construction, will share strategies he has found effective in meeting his company’s immediate needs for craft workers as well as those useful for developing a pipeline of workers for future needs.

If your firm is already experiencing challenges in finding craft workers or is anticipating challenges in the future, join AGC of America’s Open Shop Committee, HR Forum, and Training, Education & Development Forum for a web meeting on June 16 at 2:00 p.m. EDT featuring a presentation on “Best Practices in Recruiting Craft Workers.” Ron Kubitz, Recruiting Manager for Brayman Construction, will share strategies he has found effective in meeting his company’s immediate needs for craft workers as well as those useful for developing a pipeline of workers for future needs. Kubitz will address how to best use mobile technology, website language, employee referral incentives, job fairs, mentoring, and more. A roundtable discussion will follow, offering you and your fellow AGC members a chance to share your own experiences and questions. The program will also include an update on labor and employment legal developments from AGC staff.

The web meeting is open to all AGC members and chapter staff regardless of committee or forum membership. There is no cost to participate, but you must register to receive log-in and call-in information, which will be sent to all registrants just 1-2 business days prior to the web meeting. Both Internet and phone access are needed for full participation.

Click here to register.

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


Hiring Benchmark Now 7.2 Percent for OFCCP’s New VEVRAA Regulations

The Office of Federal Contract Compliance Programs (OFCCP) recently announced that the annual national percentage of veterans in the civilian labor force for 2014 is 7.2 percent.

The Office of Federal Contract Compliance Programs (OFCCP) recently announced that the annual national percentage of veterans in the civilian labor force for 2014 is 7.2 percent.

On March 24, 2014, OFCCP’s new VEVRAA regulations governing the affirmative action requirements of federal contractors and their subcontractors went into effect. At that time, OFCCP announced the national percentage of veterans in the civilian labor force as 8 percent. Since the final rule was implemented, the percentage has decreased.

Employers responsible for complying with the regulations by having a written affirmative action plan should use the 7.2 percent benchmark, or an independently derived benchmark as outlined in the regulations, for all plans with a start date of March 24, 2014 or later. The benchmark is subject to change annually and will be published in OFCCP’s VEVRAA Benchmark Database.

For more information on OFCCP’s new veterans rule and other issues related to affirmative action requirements for construction employers, visit the Labor and HR Topical Resources section of the AGC website. The primary category is “EEO” and the secondary category is “Affirmative Action/EEO.”


OFCCP Provides 503 Self-ID Form in Spanish, Word Formats

In response to requests from contractors, OFCCP posted to its website both the English and Spanish versions of the Voluntary Self-Identification of Disability form, required by the new regulations implementing Section 503 of the Rehabilitation Act (Section 503). The form is available in .pdf and Word formats. The English language version of the form was previously made available, although not in an editable format.

In response to requests from contractors, OFCCP posted to its website both the English and Spanish versions of the Voluntary Self-Identification of Disability form, required by the new regulations implementing Section 503 of the Rehabilitation Act (Section 503). The form is available in .pdf and Word formats. The English language version of the form was previously made available, although not in an editable format.

Direct federal contractors are required to use this form to invite job applicants and employees to voluntarily self-identify as an individual with a disability as required by 41 CFR 60-741.42 of the new regulations. The regulations went into effect on March 24, 2014.

The various versions of the form are available on the OFCCP’s website at http://www.dol.gov/ofccp/regs/compliance/section503.htm.

To learn more about complying with the new regulations, contractors are encouraged to read AGC’s Affirmative Action Manual for Construction, published after the rules were final. For additional compliance assistance, review AGC’s recently recorded webinar on the rules, OFCCP’s Disability and Veterans Rules: What They Mean for Federal Construction Contractors. Information can also be found in the Labor and HR Topical Resources section of the AGC website. The primary category is “EEO” and the secondary category is “Affirmative Action/EEO.”


Federal Contractors Face New Compensation Disclosure Requirements

On April 8, President Obama took two executive actions that will impact federal contractors. First, the president signed an executive order (EO) that will require federal contractors to allow their employees to discuss their earnings with one another. Second, the president signed a presidential memorandum (PM) instructing the U.S. Secretary of Labor to issue new regulations requiring federal contractors to submit to the Department of Labor (DOL) data on compensation paid to their employees, including by sex and race.

On April 8, President Obama took two executive actions that will impact federal contractors. First, the president signed an executive order (EO) that will require federal contractors to allow their employees to discuss their earnings with one another. Second, the president signed a presidential memorandum (PM) instructing the U.S. Secretary of Labor to issue new regulations requiring federal contractors to submit to the Department of Labor (DOL) data on compensation paid to their employees, including by sex and race.

The new EO applies to employers with federal and federally-assisted contracts and their subcontractors, as it amends EO 11246 with provisions allowing for the disclosure of employee compensation. According to the White House, the EO does not compel employees to discuss pay, nor does it require employers to publish or otherwise disseminate pay data. The EO protects the rights of employees to disclose not only their own compensation, but also that of “another employee or applicant.” While the National Labor Relations Board has long-interpreted the National Labor Relations Act as protecting the right of workers to discuss compensation, the EO now solidifies the interpretation. This does not apply to employees who have access to compensation information of other employee applicants as a part of such an employee’s essential job function, unless disclosure is required as part of a judicial procedure or federal agency investigation. The EO applies to contracts entered into on or after the effective date of rules issued by the Department of Labor (DOL) for the EO, a date for which is not specified.

In contrast, the PM applies only to federal prime contractors and subcontractors that perform work directly for federal agencies. The White House notes that it will allow DOL to use the data submitted to encourage compliance with equal pay laws and to “target enforcement more effectively by focusing efforts where there are discrepancies.” Federal contractors were previously required to complete a similar survey, which was put into place by DOL’s Office of Federal Contract Compliance Programs during the Clinton Administration. The tool was later rescinded during the Bush Administration. The PM requires DOL to issue a proposed rule within 120 days.

These presidential actions come on the heels of the president signing an executive order raising the minimum wage for federal contractor employees to $10.10 per hour.


AGC Comments on Proposal to Change VETS-100 and VETS-100A Forms

In response to a request for comments from the U.S. Department of Labor’s Veterans’ Employment and Training Service (VETS), AGC submitted comments regarding proposed changes to the employer reporting requirements for federal contractors as outlined by the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA).

In response to a request for comments from the U.S. Department of Labor’s Veterans’ Employment and Training Service (VETS), AGC submitted comments regarding proposed changes to the employer reporting requirements for federal contractors as outlined by the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA).

Currently, contractors with contracts or subcontracts of $25,000 or more that were entered into prior to December 1, 2003, are required to annually report the total number of employees and new hires who identify as belonging to one of the veteran categories protected under VEVRAA. The form used to report the information is the VETS-100 form. Contractors with contracts or subcontracts of $100,000 or more that were entered into on or after December 1, 2003, are required to report the same information using the VETS-100A form.

The VETS proposed rule includes two major changes to those reporting requirements. First, VETS recommends rescinding the regulations implementing the reporting requirements for contracts or subcontracts entered into before December 1, 2003. This would be rescinded as such contracts probably no longer exist. DOL’s Office of Federal Contract Compliance Programs (OFCCP) made the same change when implementing its revised regulations governing the affirmative-action requirements of contractors under VEVRAA. Second, for the remaining covered contracts and subcontracts, contractors would be allowed to report, in the aggregate, the total number of employees and new hires who are protected veterans, instead of breaking down the number into specific categories of protected veterans. The existing regulations require contractors to disclose the number of employees who have identified as disabled veterans by specific job category at each hiring location.

Because the proposed rule decreases the reporting burden for federal contractors, AGC supports the recommended changes with two exceptions. First, since a sample of the form used to report the required information was not released for review with the proposed rule, AGC suggested that VETS make all efforts to ensure the form’s ease of use for employers. In addition, AGC offered to assist VETS during the design and review process. Second, instead of the proposed effective date of one year after the effective date of the final rule, AGC requested that VETS align the effective date for compliance with the date that contractors and subcontractors must also comply with the written affirmative-action program requirements of OFCCP’s recently revised veterans rule. As such, AGC recommended a compliance date of one year after the effective date of the final rule, or an effective date that is identical to the start of the company’s next affirmative-action plan cycle, whichever is later.

AGC will continue to monitor for any new developments and will notify members once final regulations are issued.

For questions, please contact Tamika C. Carter, PHR, at cartert@agc.org.


Confidentiality Policy Barring Discussion of Cost and Personnel Information Violates NLRA

The U.S. Court of Appeals for the Fifth Circuit (LA, MS, TX) has upheld a National Labor Relations Board (“NLRB”) finding that a nonunion trucking company’s confidentiality policy violates the National Labor Relations Act (“NLRA”).

The U.S. Court of Appeals for the Fifth Circuit (LA, MS, TX) has upheld a National Labor Relations Board (“NLRB”) finding that a nonunion trucking company’s confidentiality policy violates the National Labor Relations Act (“NLRA”).

The company required all of its employees to sign a confidentiality policy that prohibited the sharing, removal, and copying of “confidential information” without prior management approval. The policy defined “confidential information” with a long list of items including information related to “our financial information, including costs, prices” and “personnel information and documents.” The Board found that the policy was unlawful because employees could reasonably interpret it to prohibit discussing their salaries and wages with people outside the company, which is a right protected by the NLRA. The court agreed.

The NLRB and court noted that use of the words “financial information, including costs” necessarily included wages and that the policy failed to contain any indication that personnel cost information, like wages, was excluded. Furthermore, by specifically referencing “personnel information,” the company implicitly included wage information in the list of confidential information.

The court found unpersuasive company evidence that its employees did not in fact interpret the policy as restricting their rights to discuss wages. What matters is whether employees “would reasonably construe” the disputed language as restricting the exercise of their rights, said the court, not whether employees actually have construed the rule that way. Likewise, whether the rule is likely to have a chilling effect is determinative, not whether the employer has enforced the rule to restrict the exercise of employee rights.

The decision does not render all confidentiality policies unlawful. The court acknowledged that the company here was free to remove the unlawful provisions of its policy and redraft to maintain confidentiality of “employee-specific information like social security numbers, medical records, background criminal checks, drug tests, and other similar information.” AGC members with confidentiality policies covering nonexempt employees should review their policies in light of the decision and consult with their labor counsel as needed.

Flex Frac Logistics, LLC v. NLRB, Case No. 12-60752 (5th Cir., 3/24/14).


OSHA to Refer Stale Whistleblower Claims to NLRB

The National Labor Relations Board (“NLRB”) and the Occupational Safety and Health Administration (“OSHA”) have entered into a program together for the referral of untimely whistleblower claims, according to a May 21 memo from NLRB Associate General Counsel Anne Purcell to NLRB regional directors and officers.

The National Labor Relations Board (“NLRB”) and the Occupational Safety and Health Administration (“OSHA”) have entered into a program together for the referral of untimely whistleblower claims, according to a May 21 memo from NLRB Associate General Counsel Anne Purcell to NLRB regional directors and officers.

Section 11(c) of the Occupational Safety and Health Act (“OSH Act”) prohibits employers from retaliating against an employee for filing a complaint with OSHA or otherwise exercising rights under the OSH Act. The statute further provides that the employee has only 30 days from the date of the alleged retaliation to file a charge of retaliation with OSHA. According to OSHA, hundreds of such “whistleblower” complaints are screened out or dismissed each year because the employee failed to complain to OSHA in a timely manner. In contrast, the National Labor Relations Act (“NLRA”) gives employees six months to file an unfair labor practice charge with the NLRB. In some cases, the basis of a Section 11(c) retaliation claim under OSHA also raises a claim of an unfair labor practice under the NLRA. Recognizing that, and “in an effort to improve customer service for these complainants,” OSHA established a new policy and process for referring untimely Section 11(c) charges to the NLRB.

A March 6 OSHA memo attached to the May 21 NLRB memo describes this policy and process. It explains that OSHA personnel will inform all employees who have filed or attempt to file a Section 11(c) charge past the 30-day limit of their ability to file a charge with the NLRB within six months and will provide such employees with the NLRB’s contact information. To help prepare them for these tasks, OSHA staff will be given brief talking points about the NLRB. Draft talking points are attached to the NRLB memo. Also attached is a template letter for OSHA regional administrators to send to employees about the untimeliness of their Section 11(c) complaint and the option of contacting the NLRB.

The NLRB memo further advises that the NLRB wishes to track the number of contacts it receives and charges it dockets as a result of such OSHA referrals. The agency has established a special toll-free number for such referrals and is revising its internal systems to facilitate such tracking. The memo also encourages NLRB regional offices to reach out to local OSHA offices “to provide briefings on the NLRB and to encourage referrals in appropriate cases.”

The new program could result in a significant uptick in unfair labor practice charges in the construction industry, both in the union and open shop sectors. Contractors served with such a charge are well-advised to promptly consult qualified labor counsel. Meanwhile, the program reinforces the need for all contractors to take steps to establish, and continually reinforce, a company culture that promotes safety and shuns retaliation against employees who raise questions about potentially unsafe conditions.


Construction Company to Pay DOL $600,000 for Misclassified Workers Provided By Labor Contractor

On May 19, the U.S. Department of Labor’s Wage and Hour Division (WHD) filed a consent judgment in the U.S. District Court for the District of Arizona to collect $556,000 in overtime back wages and liquidated damages for at least 445 current and former employees of Paul Johnson Drywall (PJD). PJD also agreed to pay $44,000 in civil monetary penalties – all for violations associated with the Fair Labor Standards Act (FLSA).

On May 19, the U.S. Department of Labor’s Wage and Hour Division (WHD) filed a consent judgment in the U.S. District Court for the District of Arizona to collect $556,000 in overtime back wages and liquidated damages for at least 445 current and former employees of Paul Johnson Drywall (PJD). PJD also agreed to pay $44,000 in civil monetary penalties – all for violations associated with the Fair Labor Standards Act (FLSA).

The judgment resolves an investigation by the WHD in Phoenix that began to look into construction contracts solicited by Arizona Tract LLC, a construction labor contractor, after investigators found that Arizona Tract misclassified former PJD workers as “member/owners” instead of employees. The investigation also established that PJD, prior to being solicited by Arizona Tract, failed to pay piece-rate workers the proper overtime at time and one-half their regular rates of pay for all hours worked beyond 40 in a single workweek. In addition, investigators found that PJD failed to keep complete and accurate records, which is also required under the FLSA.

In addition to the payment of $600,000 in back wages, damages and penalties, PJD also agreed to take specific proactive steps to ensure that its workers are properly classified and paid as employees and to generally improve compliance in the construction industry. As a result, PJD plans to hire a third-party company to monitor its compliance. In addition, PJD must ensure that all of its subcontractors are properly licensed and insured, comply with the FLSA and conduct regular training of supervisors and employees regarding the requirements of the FLSA. Outside of its own company, PJD agreed to implement an educational campaign to promote awareness of the importance of compliance with the FLSA in the Arizona residential construction industry.

Under the FLSA, employers must distinguish employees from bona fide independent contractors. The inquiry to determine a worker’s status as employee or independent contractor is whether the worker, as a matter of economic reality, is dependent on the employer or in business for himself. For more information, visit http://www.dol.gov/whd/regs/compliance/whdfs13.htm.

For more information on the FLSA, visit the Labor and HR Topical Resources section of the AGC website. The primary category is “Compensation” and the secondary category is “Fair Labor Standards Act.” For more information on independent contractor classification, select the primary category “Other Legal Issues” and the secondary category “Independent Contractors.”


AGC Webinar Discusses on Legalized Marijuana in Construction

AGC recently hosted a webinar on the implications of one of the most talked-about state laws sweeping across the country, legalized marijuana and its impact on the construction industry. A recording of the webinar is available in the AGC Bookstore.

AGC recently hosted a webinar on the implications of one of the most talked-about state laws sweeping across the country, legalized marijuana and its impact on the construction industry. A recording of the webinar is available in the AGC Bookstore.

During the webinar, Glenn Schlabs, partner with the law firm of Sherman and Howard, LLC, in Colorado Springs, CO, and Shannon Rowley, vice president and director of human resources at MWH Global, a construction firm headquartered in Broomfield, CO, shared information to help construction contractors avoid the legal pitfalls of compliance while effectively communicating with employees.

Schlabs and Rowley discussed the marijuana laws in each of the 20-plus states and the District of Columbia, with decriminalization, legalization, and/or medical marijuana laws. In addition, practical advice was also shared about drug testing policies, state/federal law preemption, drug testing requirements for federal highway contractors and best practices for enforcing policies when employees work in multiple states with differing marijuana laws.

The webinar was pre-approved for 1.5 general recertification credits by the HR Certification Institute (HRCI), the internationally recognized leader in human resource certification.

To purchase a recording of the webinar, visit the AGC Bookstore. For more information on drug testing and substance abuse, visit AGC’s Labor & HR Topical Resources web page. The primary category is “Other HR Issues” and the secondary category is “Drug & Alcohol Use and Testing.”


Registration Open for Construction HR & Training Professionals Conference

Registration is now open for AGC’s 2014 Construction HR and Training Professionals Conference. The conference, for HR, training and workforce development professionals in the construction industry, will be held Oct. 15-17 at the Sheraton Phoenix Downtown Hotel in Phoenix, Arizona. For more information or to register visit www.agc.org/CHRTPC.

Registration is now open for AGC’s 2014 Construction HR and Training Professionals Conference. The conference, for HR, training and workforce development professionals in the construction industry, will be held Oct. 15-17 at the Sheraton Phoenix Downtown Hotel in Phoenix, Arizona. For more information or to register visit www.agc.org/CHRTPC.

The conference will offer unique educational and networking opportunities for HR, training, and workforce development professionals in the construction industry. Sessions for training professionals will cover the most cutting-edge techniques in training and development currently in use and envisioned for the future of the industry. The HR sessions will help HR professionals in the industry remain up to date and compliant with employment laws and best practices. Some sessions will interest both HR and training professionals alike.

Back by popular demand is the Federal Construction HR Workshop, which will be held the afternoon of Oct. 15. This pre-conference workshop is designed to help staff responsible for compliance on federal and federally assisted projects by providing practical information and best-practice advice from experts and peers experienced in the area.

HRCI Credits have been requested for the conference and workshop.

For complete session descriptions, schedule, registration, and hotel information, visit the AGC website.


Hot Topics in Construction Labor and Employment Law Covered at AGC Labor and Employment Law Council’s Annual Symposium

The AGC Labor and Employment Law Council held its 30th Annual Construction Labor Law Symposium on May 1 and 2, 2014, in Washington, D.C. Attorneys and chapter labor relations managers from across the country shared information and learned about the latest developments in construction labor and employment law.

The AGC Labor and Employment Law Council held its 30th Annual Construction Labor Law Symposium on May 1 and 2, 2014, in Washington, D.C. Attorneys and chapter labor relations managers from across the country shared information and learned about the latest developments in construction labor and employment law.

The event began with a pre-symposium Davis-Bacon Workshop primarily focused on issues related to proper classification of Davis-Bacon-covered workers and to employer payment of covered-workers’ travel and lodging expenses. A panel of presenters including Timothy Helm, Branch Chief for Government Contracts Enforcement in the U.S. Department of Labor’s Wage and Hour Division, provided their legal and practical expertise on these often-confusing topics. Handouts are available to AGC members in the Labor and HR Topical Resources area of AGC’s website, under the main category “Compensation” and subcategory “Davis-Bacon Act.”

Davis-Bacon Workshop Panelists (right to left) Bob Roginson, Bob Evnen, Larry Marquess, and Tim Helm.

The following day, National Labor Relations Board (NLRB) Member Philip Miscimarra kicked off the main symposium with a presentation about the state of the current Board and its recent and pending cases in the construction industry. He said that members of the newly composed Board have many differences of opinion on substantive issues but have been dealing with one another in a very constructive and collegial manner. He noted that, unlike some past Boards, all five members of the present Board are true labor lawyers with considerable experience in collective bargaining and other traditional labor matters. Several, including Miscimarra himself, have significant experience in construction labor. Pending cases involving the industry include a case in which a union made allegedly “coercive” communications to a neutral employer about an unlawful subcontracting clause covering delivery, Miscimarra reported.

NLRB Member Philip Miscimarra.

Peggy Mastroianni, Legal Counsel with the Equal Employment Opportunity Commission (EEOC), addressed her agency’s current approach to employer consideration of a job applicant’s or employee’s criminal or credit history. She talked about the controversial Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions that the EEOC issued in April 2012. According to the guidance and Mastroianni’s comments, employers are advised to: (1) use a ”targeted screen” that considers the nature and gravity of the offense, time elapsed since the offense or sentence, and the nature of the job; then (2) conduct an individualized assessment for those screened out in the first step. Blanket policies excluding everyone who has a criminal record are a bad idea, Mastroianni said. The EEOC has not issued new guidance on credit checks and has not said whether it intends to do so. The agency’s approach in both criminal and credit check cases has not fared well in court lately. Mastroianni maintained that the courts have not rejected the EEOC’s theories and have rejected only the evidence presented to support the theories. Therefore, she said, the agency is not planning to abandon its approach at this time. Her handout is also posted in AGC’s Labor and HR Topical Resources library, under the main category “EEO” and subcategory “Criminal Information.”

EEOC Legal Counsel Peggy Mastroianni

The symposium covered many other timely subjects. Those for which handouts are available are listed below, with their placement in Labor & HR Topical Resources library indicated in parentheses.

  • Contractor Considerations When Entering into National Agreements (main category “Collective Bargaining,” subcategory “National Agreements”)
  • A Primer/Refresher on Lockouts Under the National Labor Relations Act (main category “Collective Bargaining,” subcategory “Strikes & Lockouts”)
  • What’s Hot Cargo Got to Do with It? A Primer/Refresher on National Labor Relations Act Sec 8(e) (main category “Collective Bargaining,” subcategory “Subcontracting/Hot Cargo Agreements”)
  • The Impact of the Affordable Care Act on Employers that Contribute to Multiemployer Plans (main category “Compensation,” subcategory “Multemployer/Taft-Hartley Benefit Plans & Trust Funds;” also under main category “Other HR Issues,” subcategory “Health Care Reform)
  • Deconstructing a Trust Agreement’s Operational and Governance Provisions (main category “Compensation,” subcategory “Multemployer/Taft-Hartley Benefit Plans & Trust Funds”)
  • Withdrawal Liability and Control Group Issues (main category “Compensation,” subcategory “Multemployer/Taft-Hartley Benefit Plans & Trust Funds”).

The AGC Labor and Employment Law Council is a private 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.


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