AGC's Human Resource and Labor News - December 8, 2015 / Issue No. 06-15 (Print All Articles)

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Last Chance to Register for Dec. 10 & 15 Davis-Bacon Webinar

The Davis-Bacon and Related Acts (DBRA) impose numerous, confusing mandates on construction contractors that work under federal and federally assisted contracts. Failure to comply puts covered contractors at risk of catastrophic consequences, from high-dollar penalties to debarment from future federal work.

The Davis-Bacon and Related Acts (DBRA) impose numerous, confusing mandates on construction contractors that work under federal and federally assisted contracts. Failure to comply puts covered contractors at risk of catastrophic consequences, from high-dollar penalties to debarment from future federal work.  On December 10 and 15, AGC will conduct a two-part webinar to help such contractors avoid those risks by educating staff tasked with DBRA compliance and administration on coverage, requirements, pitfalls, and enforcement of these laws. Each session will take place from 2:00 to 3:30 p.m. EST.

Session 1, on Dec. 10, will address which contracts and employees are covered by the DBRA, where to find additional resources for reference, and how to comply with particularly problematic areas of the laws, such as what is “site of the work,” how to treat truck drivers, independent contractors, survey crews, apprentices, trainees, and helpers, which fringe benefits can be credited toward meeting prevailing wage mandates, how to compute overtime pay; and when contractors are expected to cover employee lodging and other travel expenses.

Session 2, on Dec. 15, will cover how to read wage determinations, how to properly classify workers, when and how to seek a conformance, understanding area practice, best practices for recordkeeping and demonstrating compliance, and how to respond to allegations of misclassification in Labor Department investigations.

Learning objectives include:

  • ​Determine which contracts are covered by the DBRA;
  • ​Comply with Executive Order 13658 Establishing a Minimum Wage for Contractors;
  • Properly select and read a federal wage determination;
  • Use the federal conformance process;
  • Apply the DBRA to off-site operations, truck drivers, independent contractors, survey crews, 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;
  • Properly complete certified payroll records; and
  • ​Best respond to allegations in Labor Department investigations to minimize risks.

The faculty includes Bill Isokait, Senior Compliance Specialist, Branch of Government Contracts Enforcement with the U.S. Department of Labor’s Wage and Hour Division, and Judy Kramer of the law firm Fortney Scott.

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.

This program has been pre-approved by the HR Certification Institute for 1.5 credit hours per session (3 hours total).

*The use of this seal is not an endorsement by the HR Certification Institute of the quality of the activity.  It means that this activity has met the HR Certification Institute’s criteria to be pre-approved for recertification credit.


Union Contractors Conference Call Scheduled for Dec. 14

AGC of America’s Union Contractors Committee will hold its next conference call on Monday, December 14, at 3:00 p.m. Eastern Standard Time.

AGC of America’s Union Contractors Committee will hold its next conference call on Monday, December 14, at 3:00 p.m. Eastern Standard Time.  The agenda includes updates on recent legal and labor developments and a roundtable discussion of activities of interest to union contractors.  Participation is free and open to all AGC-member union contractors and chapter staff, regardless of committee membership.  (AGC nonmembers may not participate.) 

To register for the call, click here.  Call-in information will be sent to all registrants 1-2 business days prior to the call.

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


Construction Employer Impact of NLRB’s New Joint Employer Standard Covered in AGC Webinar

AGC of America hosted a free, members-only webinar on “What the NLRB's New Joint Employer Standard Means for Construction Contractors” as part of its quarterly Open Shop Web Meeting on Nov. 3.

AGC of America hosted a free, members-only webinar on “What the NLRB's New Joint Employer Standard Means for Construction Contractors” as part of its quarterly Open Shop Web Meeting on Nov. 3. 

Attorney Larry Marquess of Littler Mendelson delivered a presentation on the implications of the National Labor Relations Board's recent decision in the Browning-Ferris Industries case for construction employers and how such employers can minimize the risk of being deemed a joint employer of workers employed by their subcontractors, staffing firms, and other companies.  The event also featured a labor law update by Denise Gold, AGC’s associate general counsel.

AGC members can access a recording of the webinar and a copy of the handouts at http://files.agc.org/webinars/education/index.php?webinar=WB349.   Access requires logging into the AGC website as an AGC member.


Parties to 8(f) CBA Need Not Notify FMCS When Terminating Agreement

The National Labor Relations Board (“NLRB” or the “Board”) has held that a construction employer with an 8(f) collective bargaining agreement need not comply with the notice requirements imposed by Section 8(d) of the National Labor Relations Act (the “Act”).

The National Labor Relations Board (“NLRB” or the “Board”) has held that a construction employer with an 8(f) collective bargaining agreement need not comply with the notice requirements imposed by Section 8(d) of the National Labor Relations Act (the “Act”).

Section 8(d) requires that a party seeking to terminate or modify a collective bargaining agreement provide written notice to the other party to the agreement at least 60 days prior to contract expiration.  It also requires the party to notify the Federal Mediation and Conciliation Service (“FMCS”) and any similar state agency, within 30 days after providing the 60-day notice, of the existence of a related dispute. 

The case arose after construction contractor MSR Industrial Services (“MSR”) decided to terminate its “me-too” agreement binding it to a multiemployer collective bargaining agreement between an Ironworkers local and a contractors association that expired on May 31, 2013.  MSR notified the union in February 2013 of its desire to modify the agreement.  Although a dispute arose, MSR failed to notify the FMCS and counterpart state agency until the contract expiration date.  After that, the company changed the wages and benefits provided to workers previously covered by the agreement without bargaining with the union.

The union argued, and an administrative law judge agreed, that MSR’s unilateral changes to terms and conditions of employment were unlawful due to the company’s failure to comply with the notice requirements of Section (d).  According to them, the company had to wait 60 days from its notice to the FMCS before it could make such changes despite passage of the contract expiration date.  The NLRB reversed the judge’s decision on that issue. 

First, the Board held that the judge erred in failing to assess whether MSR and the union had an 8(f) or a 9(a) relationship.  [An employer with an 8(f) agreement may terminate its relationship with the signatory union expiration of the agreement, but an employer with a 9(a) agreement has an ongoing duty to bargain with the union beyond contract expiration.  For more information on the differences between 8(f) and 9(a) relationships, visit AGC’s Labor & HR Topical Resources page and select the main category “Collective Bargaining” and subcategory “Collective Bargaining Agreements:  8(f) vs. 9(a).”  Membership log-in is required for content access.]  The Board reviewed the record and determined that that the parties had an 8(f) relationship. 

Next, the Board addressed whether an employer with an 8(f) relationship may lawfully make unilateral changes upon contract expiration without giving notice to the FMCS as required by Section 8(d).  The Board found that, while the notice requirements are essential in the 9(a) context, where the bargaining relationship continues after contract expiration, there is no compelling rationale for imposing the notice requirements in an 8(f) context, where the parties have no ongoing obligation to bargain.  In the latter situation, “a key purpose of the 8(d) notice requirements—to assist the parties in settling

their differences—is no longer served, and it makes little sense to require the parties to go through the formality of notifying government mediation agencies that they notify government mediation agencies that they intend to terminate their contract,” said the Board.

Accordingly, MSR’s failure to comply with the notice requirements is not a basis for finding that it acted unlawfully when it changed employees’ terms and conditions of employment.  The Board held that MSR had no further bargaining obligation to the union after contract expiration and was privileged to make the changes unilaterally.

MSR Industrial Services, LLC, 363 NLRB No. 1 (8/31/15).


AGC Opposes NAVFAC- and GSA-Mandated PLAs

Recently, AGC sent letters opposing the possible use of a project labor agreement (PLA) mandate posted by the Naval Facilities Engineering Command Southwest (NAVFAC) and the General Services Administration Mid-Atlantic Region (GSA).

Recently, AGC sent letters opposing the possible use of a project labor agreement (PLA) mandate posted by the Naval Facilities Engineering Command Southwest (NAVFAC) and the General Services Administration Mid-Atlantic Region (GSA). The letters address the possible use of mandatory PLAs involving the construction of the Special Operations Forces Logistics Support Unit One Operations Facility at the Navy’s Silver Strand Training Complex in Imperial Beach, California and a Measurement Systems Laboratory at the NASA Langley Research Center located in Hampton, Virginia.

AGC neither supports nor opposes contractors’ voluntary use of PLAs on government projects, but strongly opposes any government mandate for contractors’ use of PLAs. AGC is committed to free and open competition for publicly funded work, and believes that the lawful labor relations policies and practices of private construction contractors should not be a factor in a government agency’s selection process.

For more information please contact Jimmy Christianson at christiansonj@agc.org or 703-837-5325.


ACA Employer Reporting Due Early 2016; AGC Webinar to Explain Requirements

The Affordable Care Act (ACA) added new reporting requirements for those employers that are subject to the ACA’s Employer Mandate. The reporting obligations of IRS Forms 1094-C and 1095-C are mandatory with respect to 2015 and forms are due to affected employees and the IRS in early 2016.

The Affordable Care Act (ACA) added new reporting requirements for those employers that are subject to the ACA’s Employer Mandate. The reporting obligations of IRS Forms 1094-C and 1095-C are mandatory with respect to 2015 and forms are due to affected employees and the IRS in early 2016. The reporting applies to all full-time employees including non-union and union employees. Employers that contribute to one or more multiemployer health and welfare plans on behalf of their employees may also have questions on how to complete the reporting for their union employees and what information they will need to do so.  AGC’s webinar, Affordable Care Act Update for Construction Employers, will assist construction employers with understanding the reporting requirements of both forms.  The webinar will be held on December 17 from 2:00-3:30 PM EST and is just $79 for AGC members and $99 for non-members.

The webinar will address the following topics:

• Which employers are required to report?
• When must the required reporting be completed?
• What information does an employer need to complete the reporting?
• For which employees must an employer submit a report?
• How should an employer report on behalf of its bargaining unit employees?

Additionally, presenters Mark Levengood and Jennifer Abrams will discuss legislative updates to the ACA including the PACE Act’s repeal of the “small employer” definition and the recent repeal of the ACA’s auto-enrollment requirement.

For HRCI-certified professionals, the webinar has been pre-approved for 1.5 general recertification credits.

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


“Right-size” Your Company’s Employee Benefits Budget

Health insurance costs continue to increase. Affordable Care Act (ACA) compliance efforts are quickly heating up. As you begin planning for your company’s 2016 health insurance renewal and want to explore ways to save money and give employees more flexibility, control and value, now is the time to explore options for building a better, more cost-effective employee benefits package that meets the compliance requirements of the ACA.

Health insurance costs continue to increase.  Affordable Care Act (ACA) compliance efforts are quickly heating up. As you begin planning for your company’s 2016 health insurance renewal and want to explore ways to save money and give employees more flexibility, control and value, now is the time to explore options for building a better, more cost-effective employee benefits package that meets the compliance requirements of the ACA.

With The AGC Alternative, you will be able to:

  • Get better control of your employee benefits budget;
  • Offer a benefit package that’s a valuable recruiting tool;
  • Offer benefits employees really want;
  • Help employees feel engaged in their own benefits enrollment process; and
  • Provide options that are meaningful for not only the single employee, but also for employees with a spouse and children…and for the most highly paid employees as well as the newest entry-level employee.

To learn more about The AGC Alternative or to get a quote prior to your annual renewal, visit www.agc.org/exchange, or call 1-800-210-5290 to speak with a benefits specialist. 

*Discounts will vary by state and number of employees enrolled.  The insurance offered may not be available in all states.  Must have 10 or more employees to qualify for coverage.

†AGC and its representatives are not licensed insurance producers and are not attempting to sell, solicit or negotiate any insurance product or plan.  The contents of this communication are for general informational purposes only.   Willis of Maryland, Inc., a licensed insurance producer, is the broker of record for all insurance products offered on AGC’s private insurance exchange, known as the AGC Alternative.  To get information about coverage terms or benefits of insurance products or to obtain a quote, please contact Willis at 1-800-210-5290 or go to www.agc.org/exchange.


AGC Helps Deliver Needed Affordable Care Act Reform

New Measure Ends Requirement for Firms to Automatically Enroll Employees

On October 8, President Obama signed into law a bipartisan budget package that included AGC of America-backed legislation to eliminate the Affordable Care Act’s (ACA) mandatory automatic enrollment provision.

On October 8, President Obama signed into law a bipartisan budget package that included AGC of America-backed legislation to eliminate the Affordable Care Act’s (ACA) mandatory automatic enrollment provision.  The mandatory automatic enrollment provision would have required employers with more than 200 full-time employees to automatically enroll employees into coverage if an employee did not voluntarily choose or decline a plan.  As AGC CEO Stephen Sandherr noted, the "new measure protects countless construction workers from being forced to pay deductions for health insurance they may not need or cannot afford."

Doing away with the automatic enrollment provision has been among AGC of America's top legislative priority since the Affordable Care Act was enacted.  During that time, AGC staff and members participated in meetings with House and Senate members, congressional leadership, and committees of jurisdiction on both sides of the Capitol and both sides of the aisle; and coordinated with a broad business coalition named the E-FLEX Coalition.  Moving forward, the association will continue to push for additional reforms to make sure construction workers have access to high quality, affordable health care, Sandherr added.


PACE Act Signed into Law

On October 8, President Obama signed a bipartisan bill into law - the Protecting Affordable Coverage for Employees Act or PACE Act. The PACE Act amends the definition of “small employer” for purposes of the non-tax portions of the Affordable Care ACT (ACA).

On October 8, President Obama signed a bipartisan bill into law - the Protecting Affordable Coverage for Employees Act or PACE Act. The PACE Act amends the definition of “small employer” for purposes of the non-tax portions of the Affordable Care ACT (ACA). Under the law, states have the option to continue defining “small employer” as an employer with fewer than 50 employees in 2016.  Absent the PACE Act, the definition of “small employer” would automatically increase for plan years beginning on or after January 1, 2016 to include an employer with 100 or fewer employees.  Notably, several states had already acted to redefine “small employer” as an employer with 100 or fewer employees, and it appears that in the absence of additional legislative action, those state actions will still take effect. 

The PACE Act impacts the portions of the ACA that apply to the small group insurance market. Small employers must purchase their group health plan coverage from the small group insurance market, which is subject to rigid community rating rules for determining premiums as well as coverage requirements that require plans to provide coverage for all essential health benefits.

The PACE Act will mean that mid-sized employers (between 51 and 100) are not allowed to participate in the Small Business Health Options Program (SHOP). But it will also allow these mid-sized employers to seek group health plan coverage from the private insurance market, which is not constrained by the community rating rules and the same coverage requirements. It is believed by the bi-partisan supporters of the legislation that this will help in holding down premium increases.

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

Editor’s note: This article was written by guest authors Diane V. Dygert and Benjamin J. Conley.  Both Diane and Benjamin are members of Seyfarth Shaw’s Employee Benefits and Executive Compensation Team.  This publication is intended for general information purposes only and does not and is not intended to constitute legal advice.  The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.


Presentations Sought for AGC’s 2016 Construction HR and Training Professionals Conference and Federal Construction HR Workshop

AGC is seeking presentations for one of its most sought-after annual conferences, the Construction HR and Training Professionals Conference. For 2016, the conference will be located in Chicago, IL, October 5-7. A Federal Construction HR Workshop will be held October 5, in conjunction with the Conference.

AGC is seeking presentations for one of its most sought-after annual conferences, the Construction HR and Training Professionals Conference.  For 2016, the conference will be located in Chicago, IL, October 5-7. A Federal Construction HR Workshop will be held October 5, in conjunction with the Conference.

The conference will offer unique opportunities for HR, training, and workforce development professionals in the construction industry.  For training professionals, the conference will offer sessions related to the most cutting-edge techniques currently in the industry and envisioned for the future in training, education and workforce development.  For HR professionals, the conference will help attendees stay up to date and compliant with employment laws and best practices.  Some sessions will be of interest to both HR and training professionals alike. 

AGC is seeking presentations from industry professionals on a variety of topics.  Details, along with a framework for proposal submissions, and other important information is available in the call for presentations.  All presentation proposals must be submitted using the provided form no later than Monday, February 1, 2016.

For additional conference information or to register, visit www.agc.org/hr_ted. For questions contact Tamika Carter at cartert@agc.org.


E-Verify Records from 2005 to Be Deleted; Available for Download through Dec. 31

In January of 2015, the Department of Homeland Security’s U.S. Citizenship and Immigration Services (USCIS) began a new practice of deleting E-Verify transaction records that are more than 10 years old.

In January of 2015, the Department of Homeland Security’s U.S. Citizenship and Immigration Services (USCIS) began a new practice of deleting E-Verify transaction records that are more than 10 years old.  As a result, employers lost access in E-Verify to cases created prior to Dec. 31, 2004, unless data was downloaded using USCIS’s new Historic Records Report prior to December 31 of the prior year.  For employers who want to maintain data from 2005, the Report must be downloaded before Dec. 31, 2015. Employers that were not using E-Verify on or before December 31, 2005, need not download the report. 

The process of deleting transaction records more than 10 years old will occur annually, according to USCIS. For more information and guidance on downloading, USCIS provides a Fact Sheet and Instructions for employers. 

To contact E-Verify Customer Support with questions, click here.


For more information or to contact us directly, please visit agc.org | © AGC, 2004 – All rights reserved