AGC's Human Resource and Labor News - December 4, 2014 (Print All Articles)

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AGC Offers Webinar on Davis-Bacon Act and New Federal Contractor Minimum Wage Law

The Davis-Bacon and Related Acts (“DBRA”) — prevailing wage laws that cover most federal and federally assisted construction projects — impose a plethora of often-confusing mandates. Federal contractors and their subcontractors also face new rules (often referred to as the “10.10 Rule”) establishing a special minimum wage for employees who work on or in connection with a Davis-Bacon covered contract.

The Davis-Bacon and Related Acts (“DBRA”) — prevailing wage laws that cover most federal and federally assisted construction projects — impose a plethora of often-confusing mandates.  Federal contractors and their subcontractors also face new rules (often referred to as the “10.10 Rule”) establishing a special minimum wage for employees who work on or in connection with a Davis-Bacon covered contract.  Failure to comply with these laws puts covered contractors at risk of catastrophic consequences, from high-dollar penalties to debarment.  On December 9 and 10, AGC of America will conduct a two-part webinar to help such contractors’ HR and other compliance personnel better understand the mandates and avoid those risks.

The first session, on Dec. 9 starting at 2:00 p.m. EST, will address DBRA coverage and compliance issues that particularly present pitfalls. The second session, on Dec. 10 starting at 2:00 p.m. EST, will address issues and best practices in worker classification (paying workers the proper rate) as well as important nuances of the 10.10 Rule. Learning objectives include how to:

  • properly select and read a wage determination;
  • use the federal conformance process;
  • properly complete certified payroll records;
  • use the federal conformance process;
  • apply the DBRA to off-site operations, truck drivers, independent contractors, apprentices, trainees, and helpers;
  • comply with DBRA overtime, fringe benefit, and travel expense requirements;
  • ascertain which wage determination classification applies to employees;
  • demonstrate compliance through effective recordkeeping;
  • best respond to allegations in DOL investigations to minimize the risk of liability;
  • determine whether your company is subject to special minimum wage mandates;
  • determine which workers are entitled to the special minimum wage; and
  • prepare for annual changes in the federal contractor minimum wage rate.

The faculty includes Tim Helm, head enforcer of Davis-Bacon at the U.S. Department of Labor, and attorneys David Fortney and Judy Kramer of the law firm Fortney Scott. HRCI approval is pending.

To register, click here.

When signing up for the webinar, registrants can purchase the latest edition of AGC’s Davis-Bacon Compliance Manual (© 2012) for just $50 extra.


IRS Announces 2015 COLA Increases

The Internal Revenue Service (IRS) recently announced cost-of-living adjustments impacting qualified retirement plans and health flexible spending accounts (FSAs) for 2015. For retirement plans, increases were made to most of the general plan limitations, including the individual limits on deferrals and catch-up contributions, as well as the limit on annual compensation.

The Internal Revenue Service (IRS) recently announced cost-of-living adjustments impacting qualified retirement plans and health flexible spending accounts (FSAs) for 2015. For retirement plans, increases were made to most of the general plan limitations, including the individual limits on deferrals and catch-up contributions, as well as the limit on annual compensation.  For FSAs, the inflation-adjusted limit will increase by $50.  No change was made to transit and parking pre-tax subsidies or dependent care assistance plans.  The following table highlights the changes made by the IRS. 

Code Section

2015

2014

401(a)(17)/404(l) Annual   Compensation

$265,000

$260,000

402(g)(1) Elective   Deferrals

18,000

17,500

414(v)(2)(B)(i)   Catch-up Contribution

6,000

5,500

415(b)(1)(A)   Defined Benefit Plan Limits

210,000

210,000

415(c)(1)(A)   Defined Contribution Plan Limits

53,000

52,000

457(e)(15)   Deferral Limit

18,000

17,500

414(q)(1)(B)   Highly Compensated Employee Threshold

120,000

115,000

409(o)(1)(C) ESOP   Limits

1,070,000      210,000

1,050,000    210,000

416(i)(1)(A)(i)   Key Employee

170,000

170,000

408(p)(2)(E)   SIMPLE Maximum Contributions

12,500

12,000

414(v)(2)(B)(ii)   SIMPLE Catch-up Contribution

3,000

2,500

408(k)(2)(C) SEP   Minimum Compensation

600

550

408(k)(3)(C) SEP   Maximum Compensation

265,000

260,000

1.61-21(f)(5)(i)   Control Employee

105,000

105,000

1.61-21(f)(5)(iii)   Control Employee

215,000

210,000

Social Security   Tax Wage Base

118,500

117,000

Health FSA

2,550

2,500

Dependent Care   Assistance Plans

No change

5,000 for   qualified individuals and those who are married and file a joint return;   2,500 for those who are married and file separate returns

Qualified Transit   Benefits

No change

$130 per month

Qualified Parking   Benefits

No change

$250 per month


Editor’s Note: The content of this article was heavily contributed by the attorneys of Ogletree Deakins, a labor and employment law firm representing management. This information should not be relied upon as legal advice.


Employers Prohibited From Reimbursing Individual Plan Premiums Even On An After-Tax Basis

The U.S. Department of Labor (DOL) released new Affordable Care Act FAQs making it clear that employers are prohibited from providing a cash reimbursement to employees for the purchase of an individual market policy regardless of whether the reimbursement is on a pre-tax or after-tax basis.

The U.S. Department of Labor (DOL) released new Affordable Care Act FAQs making it clear that employers are prohibited from providing a cash reimbursement to employees for the purchase of an individual market policy regardless of whether the reimbursement is on a pre-tax or after-tax basis. The DOL considers these types of arrangements to be “group health plans” and subject to the market reform provisions of the Patient Protection and Affordable Care Act; a group health plan that simply reimburses premiums will not satisfy these market reform provisions and will therefore violate the Affordable Care Act. Violation of these requirements can result in substantial excise taxes to the employer.

Simultaneously, additional FAQs were issued to clarify that employers may not offer employees with high claims risk a choice between enrollment in its standard group health plan and cash, as well as prohibiting the use of vendor sponsored Section 105 reimbursement plans as a way to assist eligible employees in accessing premium tax credits on the Marketplace.

Click here for a copy of the latest FAQs.

Editor’s Note: The content of this article was contributed by Kristi R. Gauthier, an employee benefits lawyer with the firm Clark Hill. This information should not be relied upon as legal advice.


OFCCP Announces Final Rule on Sexual Orientation and Gender Identity

On December 3, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP), announced final regulations implementing Executive Order 13672 (EO).

On December 3, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP), announced final regulations implementing Executive Order 13672 (EO).  The EO prohibits federal contractors with contracts of $10,000 or more and their subcontractors from engaging in employment discrimination on the bases of sexual orientation or gender identity. The final rule will take effect 120 days after it is published in the Federal Register and will apply to federal contracts entered into or modified on or after that date.

The EO was signed by President Obama on July 21, 2014.  It requires federal contracting agencies to include “sexual orientation” and “gender identity” as prohibited bases of discrimination under the Equal Opportunity Clause mandated by Executive Order 11246.  The final rule solidifies this requirement but does not require contractors to collect any information about applicants’ or employees’ sexual orientation or gender identity.

All employers, whether engaged in government contracting or not, should note that both the OFCCP and the EEOC had already adopted the position that discrimination on the basis of gender identity or transgender status is a form of sex discrimination prohibited by Executive Order 11246 and Title VII of the Civil Rights Act of 1964.

For more information on the OFCCP’s new final rule, visit www.dol.gov/ofccp/LGBT.


AGC Submits Comments on OFCCP Information Collection Requirement

On November 3, AGC submitted comments to the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) in response to its request to the Office of Management and Budget (OMB) to extend the approval of the construction information collection requirement (ICR). The ICR addresses recordkeeping and reporting for compliance with Executive Order 11246 (EO), Section 503 of the Rehabilitation Act of 1973, and the Vietnam Era Veterans’ Readjustment Assistance Act. The existing approval expires December 31.

On November 3, AGC submitted comments to the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) in response to its request to the Office of Management and Budget (OMB) to extend the approval of the construction information collection requirement (ICR).  The ICR addresses recordkeeping and reporting for compliance with Executive Order 11246 (EO), Section 503 of the Rehabilitation Act of 1973, and the Vietnam Era Veterans’ Readjustment Assistance Act.  The existing approval expires December 31.

OFCCP suggests that it will cost each covered contractor just $499 and 16 hours to comply with the ICR.  AGC’s comments urge OFCCP to recalculate and increase the estimated burden amounts presented to OMB because OFCCP:   

  • Excluded several groups of covered contractors from the estimated number of contractors impacted by the EO;
  • Underestimated the number of small construction contractors impacted;
  • Excluded costs for federally assisted construction contractors and subcontractors based on the assumption that such contractors already must meet the burden requirement when complying with other regulations;
  • Inaccurately assumed that the majority of federal construction contractors and subcontractors are repeat contractors with information technology systems in place to easily generate the data required by OFCCP;
  • Excluded cost considerations for new contractors entering the federal market for the first time;
  • Excluded costs for the development of training tools and systems; and
  • Failed to consider costs and time estimates associated with President Obama’s recent expansion of the EO through other EOs and a Presidential Memorandum.

AGC’s comments also suggest that the collection of the requested information is not necessary at this time because construction companies are desperate to hire qualified workers due to a construction industry labor shortage and because the data, in general, do not support the need for the information collection.   

To learn more about EO 11246 and other affirmative action laws for federal contractors, visit OFCCP’s website.  For specific information and resources related to the affirmative action requirements of federal and federally assisted construction contractors, visit AGC’s Labor & HR Topical Resources webpage.  The primary category is “EEO” and the secondary category is “Affirmative Action/EEO.”


New Construction-Focused Anti-Harassment Training DVD Available

Included are separate videos for supervisors and non-supervisors, each with optional Spanish closed-captioning.

AGC is excited to announce the release of a new harassment prevention training DVD called Diversity Rules: Harassment Prevention, Sensitivity & Correction Training for Construction Workers and Supervisors (“Diversity Rules”). Diversity Rules is one DVD with two training videos designed to aid construction employers with harassment prevention, sensitivity, and correction training.

AGC is excited to announce the release of a new harassment prevention training  DVD called Diversity Rules: Harassment Prevention, Sensitivity & Correction Training for Construction Workers and Supervisors (“Diversity Rules”). Diversity Rules is one DVD with two training videos designed to aid construction employers with harassment prevention, sensitivity, and correction training. One video on the DVD is targeted for an audience of supervisors and the other is targeted for an audience of non-supervisors.  Both videos were filmed on a construction jobsite and are equipped with Spanish-language closed-captioning that the trainer can turn on or off.  The DVD is available in the AGC bookstore. Employment lawyers from the law firm Fisher & Phillips LLP helped create the videos.  They also lent their expertise in an AGC webinar on November 4 titled Building the Best Harassment Prevention & Training Program for Your Construction Company. The webinar covered use of the video and other best practices construction companies should consider when conducting harassment-prevention training .  A recording of the webinar is also available in the AGC bookstore.

For more information on harassment-prevention, visit the Labor and HR Topical Resources section of the AGC website.  The primary category is “EEO” and the secondary category is “Harassment.”


AGC Tells NLRB to Preserve Notice Rule in Common-Situs Picketing Cases

AGC of America has submitted an amicus brief with the National Labor Relations Board in a case involving common-situs picketing.

AGC of America has submitted an amicus brief with the National Labor Relations Board in a case involving common-situs picketing.  The case, IBEW Local 357 (Desert Sun Enterprises), presents an opportunity for the Board to reconsider its long-standing requirement that, when a union notifies a neutral employer of its intent to picket a primary employer (the employer with which it has a direct dispute) at a site where both employers are located, the union must include assurances that it will conduct the picketing in accordance with set standards for lawful picketing.

In the brief, AGC urges the Board to maintain the requirement because it is consistent with the National Labor Relations Act, protects important public policies, and reflects the realities of labor relations on multiemployer worksites.  “Departing from precedent…would allow unions to turn studied ambiguity in their communications into a weapon they could readily wield against the potentially many secondary employers at the potentially many sites at which a primary employer and those secondary employers are both working,” AGC explains. 

Joining AGC on the brief is the Council on Labor Law Equality, an association of employers in various industries with the collective purpose of monitoring and commenting on developments in the interpretation of the National Labor Relations Act.  The brief was written by attorneys with the law firm Ogletree Deakins.

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


Court Dismisses Carpenters’ Lawsuits Against Building Trades and Metal Trades

The U.S. Court of Appeals for the Ninth Circuit (AK, AZ, CA, HI, ID, MT, NV, OR, WA, Guam) has upheld the dismissal of two lawsuits brought by the Carpenters against various AFL-CIO affiliates and representatives. The cases stem from actions allegedly taken by the AFL-CIO’s Building and Construction Trades Department (“BCTD”) and others during a “Push-Back-Carpenters Campaign” aimed at forcing the Carpenters to re-affiliate with the BCTD.

The U.S. Court of Appeals for the Ninth Circuit (AK, AZ, CA, HI, ID, MT, NV, OR, WA, Guam) has upheld the dismissal of two lawsuits brought by the Carpenters against various AFL-CIO affiliates and representatives.  The cases stem from actions allegedly taken by the AFL-CIO’s Building and Construction Trades Department (“BCTD”) and others during a “Push-Back-Carpenters Campaign” aimed at forcing the Carpenters to re-affiliate with the BCTD.

In the primary case, the Carpenters claimed that the BCTD violated the Racketeer Influenced and Corrupt Organizations Act (“RICO”) and the Labor Management Reporting and Disclosures Act (“LMRDA”).  The Carpenters cited various acts by the BCTD to exert intense economic pressure as well as vandalism and threats of force in support of their claims.  The court, however, concluded that the Carpenters’ allegations, as a matter of law, failed to state a claim under either RICO or the LMRDA.  The court found that the allegations did not amount to racketeering activity under federal or state extortion law.  It further found that allegations that BCTD officers orchestrated the termination of  an affiliation agreement between the Carpenters and the AFL-CIO’s Metal Trades Department (“MTD”) were inadequate to establish an LMRDA violation.

In the second case, the Carpenters sued the MTD and the Hanford Atomic Metal Trades Council for breach of the duty of fair representation under the National Labor Relations Act.  According to the Carpenters, after terminating the affiliation agreement in accordance with the BCTD’s wishes, the MTD ousted Carpenters members from positions as stewards solely because of their Carpenters union membership.  The court held that the duty of fair representation does not prevent unions from appointing or removing stewards based on union affiliation.   Selecting stewards based on the expectation of undivided loyalty is not unreasonable discrimination and does not, by itself, breach the duty of fair representation, said the court.

In a memorandum opinion issued the same day as the above decisions, the court also affirmed the dismissal of another Carpenters’ claim against the MTD.  The claim included various other actions allegedly taken by the MTD against individual Carpenters members in violation of the duty of fair representation.  The court found that the complaint actually alleged wrongdoing on the part of MTD-affiliated unions, not the MTD, and failed to establish any agency relationship by which the MTD should be held liable. 

Bredhoff & Kaiser PLLC, the law firm representing the BCTD, lauded the RICO decision as “a landmark ruling of great importance to unions and other activist organizations.”  By holding that “the non-violent use of economic pressure, including ‘intense’ economic pressure that may be tortious under state law, is not ‘extortion’ under (RICO)…the Ninth Circuit’s ruling clears the way for labor organizations and other groups to attempt to change corporate and other institutional behavior by engaging in comprehensive campaigns, sometimes referred to as ‘corporate campaigns,’” said the firm in a website posting.  AGC will keep an eye out for an upturn in such activity and welcomes receiving relevant information. To report significant developments, contact Denise Gold at goldd@agc.org.

United Bhd. of Carpenters & Joiners of America v. Building and Construction Trades Dep’t, AFL-CIO, Case No. 12-36049 (9th Cir., 10/28/14); United Bhd. of Carpenters & Joiners of America v. Metal Trades Dep’t, AFL-CIO, Case No. 13-35095 (9th Cir., 10/28/14).


Old E-Verify Records to Be Deleted; Employers Must Download Historic Records Prior to Dec. 31

According to the Department of Homeland Security’s U.S. Citizenship and Immigration Services (USCIS), effective January 1, 2015, E-Verify transaction records more than 10 years old will be deleted from the system. As a result, employers will no longer have access in E-Verify to cases created prior to December 31, 2004.

According to the Department of Homeland Security’s U.S. Citizenship and Immigration Services (USCIS), effective January 1, 2015, E-Verify transaction records more than 10 years old will be deleted from the system. As a result, employers will no longer have access in E-Verify to cases created prior to December 31, 2004.

To accommodate employers that want a record of cases that are over 10 years old, E-Verify has created a new Historic Records Report. Employers must download the new Report before December 31, 2014. Employers that were not using E-Verify on or before December 31, 2004, need not download the report.

The process of deleting transaction records more than 10 years old will occur annually, according to USCIS. Each year, the agency will notify employers when the Historic Records Report is available for downloading.

For more information and guidance on downloading, USCIS has provided a Fact Sheet and Instructions for employers. To contact E-Verify with questions, click here.


Veteran Recruiting Best Practices for Construction Employers; Webinar Recording Available

It is a reality. For construction employers, a workforce shortage is just around the corner and with many returning veterans and military spouses seeking employment, making a connection is a win for all.

It is a reality. For construction employers, a workforce shortage is just around the corner and with many returning veterans and military spouses seeking employment, making a connection is a win for all. As part of the construction industry’s effort to hire 100,000 veterans over the next five years, the Associated General Contractors of America (AGC) and the U.S. Chamber of Commerce Foundation presented a 60-minute webinar on Hiring Our Heroes: Best Practices for Construction Employers. Led by seasoned veteran recruitment experts, this webinar provided construction industry employers with the insight necessary to find, recruit, and hire returning veterans and military spouses.

During this webinar, participants learned  how to:

  • Identify activities they can engage in to successfully recruit veterans;
  • Connect with organizations that can assist them in creating a pipeline to veterans; and
  • Identify resources that will assist with matching military work experience with construction industry job classifications.

AGC of America has made the webinar recording available to members. To access the webinar, please go to www.agc.org/workforce. If you have any additional questions, please contract Sarah Gallegos at gallegoss@agc.org.


Best Practices and Compliance Take Center Stage at AGC’s Annual HR & Training Conference

AGC’s 2014 Construction HR & Training Professionals Conference wrapped up Oct. 17 after two days of education, sharing of best practices and networking in Phoenix, AZ. The conference continues to be a must-attend event for HR and training professionals in the construction industry.

AGC’s 2014 Construction HR & Training Professionals Conference wrapped up Oct. 17 after two days of education, sharing of best practices and networking in Phoenix, AZ. The conference continues to be a must-attend event for HR and training professionals in the construction industry.

The opening day of the Conference was kicked off with a presentation by Hilari Weinstein of High Impact Communications. Weinstein shared techniques for Optimizing Your Personal Demeanor & Delivery for High Impact Presentations. Following the opening session, AGC’s chief economist, Ken Simonson, and construction industry compensation expert and owner of PAS Inc., Jeff Robinson, educated HR professionals on the current state of the U.S. economy and its impact on construction work and wages. Based on information provided in the session, attendees learned what areas of the country are seeing an increase in demand for construction and best practices for compensating workers in those areas for the purpose of recruitment and retention. Simultaneously, Louyse Poirier, Senior Vice President of Human Resources for Balfour Beatty Construction educated training professionals on the best practices for aligning HR management with HR development in order to build a sustainable talent pipeline. During the presentation, Poirier demonstrated how Balfour Beatty created and implemented a competency-based model that aligns recruitment, training and development, performance management. At the conclusion of the presentation, each attendee received a toolkit with practical materials and guides to use to customize a competency-based approach in their own respective organization. Additional sessions throughout the day included How to Make Online Delivery an Essential Part of Your Training Curriculum, An Employment Law Update for Construction Employers, and small group round table discussions that covered more than fifteen of the top issues currently facing construction HR and training professionals.

On day two, Robin Renschen, director of learning and development for McCarthy Building Companies, and Matthew Hunt, director of organizational effectiveness for McCarthy led a session entitled “So, Your Initiative Didn’t Stick… Try Change Management.” The two shared how their company implemented a more strategic approach to initiative rollout and based on its success, was awarded a 2014 Top 125 Best Practice Award from Training Magazine. Other topics presented throughout the day included The Role of Effective Incentive Compensation in Construction, Strategies for Dramatically Reducing Healthcare Costs, Using Scenario Based Training Stick and Linking Training To Business Performance. The conference concluded with an interactive panel discussion on the current construction industry workforce shortage led by members of AGC’s Industry Recruiting Task Force.

This year’s conference was preceded by a pre-conference Federal Construction HR Workshop. During the opening session of the workshop, AGC’s director of construction HR, Tamika Carter, educated attendees on the many executive orders recently announced by President Obama as well as pending regulations that directly impact federal contractors. The remainder of the workshop included sessions on ethics, Davis-Bacon and affirmative action compliance for federal contractors.

The conference was sponsored by the National Center for Construction Education & Research, BirdDog, PAS, Inc., eMars, Workplace HR, ClickSafety, and The AGC Alternative.

Planning for the 2015 conference is underway, so stay tuned for details.


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