AGC's Human Resource and Labor News - April 18, 2016 / Issue No. 02-16 (Print All Articles)

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AGC Advocates for Construction Contractors in Rulemaking on Federal Contractor Paid Leave Mandate

AGC of America submitted extensive comments on the U.S. Department of Labor (DOL) Wage and Hour Division’s proposed rule implementing Executive Order 13706, Establishing Paid Sick Leave for Federal Contractors, on April 12.

AGC of America submitted extensive comments on the U.S. Department of Labor (DOL) Wage and Hour Division’s proposed rule implementing Executive Order 13706, Establishing Paid Sick Leave for Federal Contractors, on April 12.

As previously reported, the Executive Order and proposed rule require contractors with direct federal contracts and their subcontractors under such contracts to provide employees working on or in connection with such contracts up to seven days of paid leave annually for sickness and other covered purposes.

In the comment letter, AGC urged DOL not to apply the rule to employees considered “laborers and mechanics” (craftworkers, roughly speaking) under the Davis-Bacon Act (DBA) or to independent contractors.  AGC explained how the paid sick leave mandate is ill-fitting and impractical given project-based, transitory, and seasonal character of construction work and the history of paying craftworkers only for time worked.  AGC also explained how the mandate is inconsistent with the DBA and would increase costs and inefficiency in federal procurement.  If the rule must apply to “laborers and mechanics,” AGC argued, then contractors should be allowed to (a) take credit for the paid leave toward meeting DBA prevailing wage obligations and (b) meet their paid leave obligations by contributing to a benefit trust fund. 

AGC’s comments also addressed problems in the proposed provisions on maximum accrual, carryover, and reinstatement of paid leave.  Various aspects of those provisions are confusing and difficult to apply in the construction industry. 

In addition, AGC raised concerns about:  the insufficient length of time allowed for implementation of the rule; the need for clarity on application of the rule to new task orders under existing indefinite-delivery, indefinite quantity (IDIQ) contracts; the appropriate remedy when a contracting agency fails to include the associated contract clause; the excessive withholding authority granted to contracting officers; and the unwarranted and unworkable vicarious liability imposed on prime and upper-tier contractors for subcontractor noncompliance.

A final rule is expected by September 30, 2016.  AGC will continue to monitor the rulemaking and initiatives to curtail it, and will report on significant developments.

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


Department of Labor Schedules Prevailing Wage Seminars

The U.S. Department of Labor’s Wage and Hour Division (WHD) has scheduled six upcoming seminars throughout the country to educate federal andfederally assisted contractors on the Davis-Bacon and Related Acts and otherfederal contracting wage laws the agency enforces. Each two-and-a-halfday seminar will address such topics as the process of obtaining wagedeterminations and adding classifications, compliance assistance andenforcement procedures, and the process of appealing wage rates. There is no cost to attend, but space is limited. 

The U.S. Department of Labor’s Wage and Hour Division (WHD) has scheduled six upcoming seminars throughout the country to educate federal and federally assisted contractors on the Davis-Bacon and Related Acts and other federal contracting wage laws the agency enforces.  Each two-and-a-half day seminar will address such topics as the process of obtaining wage determinations and adding classifications, compliance assistance and enforcement procedures, and the process of appealing wage rates. There is no cost to attend, but space is limited. 

The upcoming seminars will be held on the following dates:

  • May 3-5 in Minneapolis, MN;
  • May 23-25 in Charlotte, NC;
  • June 7-9 in Stamford, CT;
  • June 14-16 in Albuquerque, NM; and
  • August 23-25 in Portland, OR.

To register, visit the WHD’s website. Because this is not an AGC-affiliated event, interested parties should contact the WHD at 1-866-487-9243 for more information. 

Those who are not able to attend may find additional guidance on the AGC website.  Resources such as AGC’sDavis-Bacon Compliance Manual Fourth Edition and AGC’s recently recorded webinars on Understanding Davis-Bacon Compliance and Enforcement Part 1 and Part 2 are located in the AGC Bookstore.  For guidance and compliance assistance tools, visit AGC’s Labor& HR Topical Resources web page.  The primary category is “compensation” and the secondary category is “Davis-Bacon Act.” 

Additionally, contractors may learn more about Davis-Bacon compliance at AGC’s Federal Construction HR Workshop,which will be held October 5, 2016, in conjunction with AGC’s Construction HR and Training Professionals Conference.  The Conference will be held October 5-7 in Chicago, Illinois.  For more information on the conference, visit www.agc.org/traininghrconference.


AGC Opposes Revised EEO-1 Report with Compensation and Hours-worked Data

On April 1, AGC submitted comments to the Equal Employment Opportunity Commission opposing its proposal to revise the Employer Information Report (EEO-1).  The proposal intends to collect compensation and hours-worked data, in addition to already collected race and gender data, from all employers with 100 or more employees. 

On April 1, AGC submitted comments to the Equal Employment Opportunity Commission opposing its proposal to revise the Employer Information Report (EEO-1).  The proposal intends to collect compensation and hours-worked data, in addition to already collected race and gender data, from all employers with 100 or more employees.  Prime and first-tier subcontractors who perform work directly for the federal government and have 50 or more employees would be required to submit the currently used EEO-1 report that does not include compensation and hours-worked data.  Employers with fewer than 100 employees, second-tier and lower federal subcontractors with fewer than 100 employees, all federally-assisted contractors with fewer than 100 employees, and prime and first-tier subcontractors with fewer than 50 employees will not be required to complete either version of the EEO-1 report.

The proposal to revise the report references wage discrimination as the basis for the need to collect compensation data from employers.  AGC’s comments explain to the Commission that collecting wage data are not necessary.  Specifically, AGC shows through data collected by the Commission and the Office of Federal Contract Compliance Program (OFCCP) that there is no need for the eradication of wage discrimination in construction because there is no evidence that such discrimination exists.  The Commission’s charge data from 2013 reveal that just 1.05 percent of the total number of equal pay claims were identified as from the construction industry.  Additionally, of the 4,007 audits conducted by OFCCP in 2012, pay discrimination occurred against women in only 0.03 percent of all the facilities audited.  AGC also addressed other reasons why the collection of wage data are unnecessary including explanations that:

  • Better suited tools already exist to assist with compensation benchmarking;
  • National wage data are useless for benchmarking purposes in construction; and
  • Government analysis will not account for a wide variety of factors used to determine compensation.

Regarding the collection of hours-worked data, the proposal did not provide an example of what the collection of information would look like on the revised form.  As a result, AGC’s comments ask the EEOC to withdraw consideration of this requirement until it can provide an example that can be evaluated by employers for public comment.

While AGC’s comments stress that these data are not needed, in an effort to mitigate the burdensome impact the proposed changes would have on its members, AGC urged the EEOC to consider the following should the revisions be unnecessarily implemented:

  1. Understand that aggregate data are not useful or transparent, yet transparent data place employers’ proprietary information at risk
  2. Change the EEO-1 Reporting Date to Allow for Post-Annual Reporting
  3. Clearly Define “Contractor” on the Revised EEO-1 Form
  4. Take All Measures to Ensure Confidentiality Prior to the Release of a Revised EEO-1 Report
For more information on the proposal, click here.  Visit the EEOC website to see the sample revised form.  AGC will continue to monitor the developments of the proposal and will keep members informed.  


Labor Department Issues Final “Persuader” Rule, Increasing Reporting Obligations of Employers and Labor Consultants

AGC Opposed to New Rule Overall, but Attained Some Improvements Over Proposed Rule
The U.S. Department of Labor (DOL) published a final rule on “persuader” activities in the Federal Register on Wednesday.  The rule, which was pending for nearly five years, expands reporting obligations of labor relations consultants (including attorneys and trade associations) that conduct activities to persuade employees on how to exercise their rights to union representation and collective bargaining, and of the employers that receive assistance from such consultants. 

The U.S. Department of Labor (DOL) published a final rule on “persuader” activities in the Federal Register on Wednesday.  The rule, which was pending for nearly five years, expands reporting obligations of labor relations consultants (including attorneys and trade associations) that conduct activities to persuade employees on how to exercise their rights to union representation and collective bargaining, and of the employers that receive assistance from such consultants.  AGC submitted independent comments opposing the proposed rule in 2011 and signed onto joint comments of the Coalition for a Democratic Workplace (CDW).  The final rule maintains many of the detriments of the proposed rule, likely rendering employers less willing and able to obtain expert guidance about their rights and responsibilities during a union organizing drive and otherwise.  AGC is discouraged by the Department’s decision to go forward with the final rule but is gratified to have achieved some clarification and limitations on the coverage of trade associations requested in AGC’s comment letter. 

The final rule applies to agreements and arrangements for covered “persuader” activities, and payments for same, made on or after July 1, 2016.   For additional details about the mandates and purpose of the rule, click here and here

CDW is likely to file a legal challenge, as are other organizations.  AGC will monitor and report on progress as appropriate.  Meanwhile, employers with questions about the new reporting obligations – especially open-shop contractors facing union organizing activity and chapters that advise open-shop and union contractors about labor law matters – may want to consult outside labor counsel for advice.

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


Laborers and Iron Workers General Presidents Share Views at AGC Convention

Two of the industry’s top labor leaders addressed contractors at AGC of America’s 2016 Annual Convention on March 10 in San Antonio, TX. AGC CEO Steve Sandherr engaged Terry O’Sullivan, general president of the Laborers’ International Union of North America, and Eric Dean, general president of the International Association of Bridge, Structural, Ornamental & Reinforcing Iron Workers, in a discussion about their unions’ current initiatives and other matters of concern to union contractors. The session was hosted by AGC’s Union Contractors Committee and opened by Committee Chairman Vic DiGeronimo, Jr.

Two of the industry’s top labor leaders addressed contractors at AGC of America’s 2016 Annual Convention on March 10 in San Antonio, TX.  AGC CEO Steve Sandherr engaged Terry O’Sullivan, general president of the Laborers’ International Union of North America, and Eric Dean, general president of the International Association of Bridge, Structural, Ornamental & Reinforcing Iron Workers, in a discussion about their unions’ current initiatives and other matters of concern to union contractors.  The session was hosted by AGC’s Union Contractors Committee and opened by Committee Chairman Vic DiGeronimo, Jr.

Multiemployer pension plan reform was among the hot topics discussed.  AGC has worked closely with the building trade unions to advocate for reform.  While the Multiemployer Pension Reform Act of 2014 brought some of the sought-after changes to the law, further revisions are needed.  Mr. O’Sullivan commented at the session that he supports legislation to facilitate the use of composite plans as an alternative to traditional multiemployer defined benefit plans, but he also wants to allow traditional plans to opt out of the “doomed” Pension Benefit Guaranty Corporation (PBGC) system.  Other insurance options are available, he noted.  Mr. O’Sullivan said that he opposes an increase in PBGC premiums at any level, explaining that he finds it difficult to “keep throwing money to an agency that is going out of business.”

Mr. Dean was asked to share his perspective on the application to reduce benefits recently made by Iron Workers Local 17 Pension Fund out of Cleveland.  He said that the critically funded plan exhausted all other options for relief before resorting to benefit reductions and that retirees are looking at benefit cuts of 30-50 percent.  He also noted that the Detroit Iron Workers fund is not far behind.  He added that his union supports composite plan legislation but is also looking into an existing opportunity for relief under 414(k) rules, particularly for their national pension funds.  They are waiting to hear from regulators as to whether they may take advantage of 414(k) provisions, which would permit annualized contributions paid into a defined contribution plan, eliminating future withdrawal liability, and converting annually into an annualized benefit, he said.

The union leaders also spoke about their respective organizations’ current workforce development initiatives.  When asked about efforts to meet growing labor supply challenges, the general presidents talked about their various tactics to recruit more people into the trades, including efforts to reach out to more women and other under-represented groups.  Mr. O’Sullivan talked about the different strategies his union uses to recruit in union high-density areas verses low-density areas.  In low-density areas, for example, they work more with faith-based groups and day labor organizations, and run radio ads in both English and Spanish.  When asked about training those already in the industry, Mr. O’Sullivan said that training is “near and dear to my heart” and is “what we do best.”  He reported that the Laborers now have 70 fixed training facilities across the country and over 40 mobile training facilities.  Collectively, through employer contributions, the union is spending $130 million a year to train laborers.

Mr. Dean, who just became general president eight months ago, reported that his predecessors put into place various accountability measures and key performance indicators to assess local training programs, schools, labs, and the like.  The international has also established a Recruitment and Retention Committee that is putting together a best practices white paper, reported Mr. Dean.  The intent is to push local joint apprenticeship and training committees – which oversee 156 Iron Worker training centers across the country – to integrate these best practices and adopt standard selection procedures.  He also spoke about professional development opportunities beyond craft skills training that his union sponsors, such as a succession planning program taught by FMI designed to encourage continuity of union-signatory companies and to facilitate opportunities for Iron Worker leaders to eventually become savvy business owners.

To hear the entire discussion, click here for a video recording of the session.

        

  

 


Details Emerge for AGC’s 2016 Construction HR & Training Professionals Conference

Each October, construction industry professionals in HR, training and workforce development gear up for the industry’s premier learning and networking event, AGC’s Construction HR & Training Professionals Conference, and this year is no different. The 2016 event will be held Oct. 5-7 at the Hyatt Regency Chicago in Chicago, Illinois. For more information or to register visit www.agc.org/HR_TED.

Each October, construction industry professionals in HR, training and workforce development gear up for the industry’s premier learning and networking event, AGC’s Construction HR & Training Professionals Conference, and this year is no different. The 2016 event will be held Oct. 5-7 at the Hyatt Regency Chicago in Chicago, Illinois. For more information or to register visit www.agc.org/HR_TED.

This year’s Conference will kick-off on the afternoon of Oct. 5 with a pre-conference Federal Construction HR Workshop.  Designed to help staff responsible for compliance on federal and federally assisted projects, the workshop provides practical information and best-practice advice from experts and peers experienced in the area.  Sessions for this year include “Wage and Hour Issues Impacting Federal Construction Contractors”, “OFCCP Regulatory Wrap-Up”, and “Understanding Federal Affirmative Action and Equal Employment Obligations (for Employers with both a Construction and Non-Construction Workforce AND for those who are unsure).”

During the Conference, 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 while the HR-related sessions will help HR professionals in the industry remain up to date and compliant with employment laws and best practices.  Some sessions this year for training and workforce development professionals include “Build a Successful Future with Generation Next”, “Developing Future Leaders” and “Setting the Starting Line for New Managers.”  For HR professionals in the industry, some sessions include “Top 10 HR Best Practices Contractors Should Adopt to Avoid Getting Sued by Their Employees”, “Incentive Compensation Best Practices in Construction”, and “Labor & Employment Law Changes that Impact Construction.” 

Some sessions will interest both HR and training professionals alike, such as a hands-on, interactive, train-the-trainer session called “The Supervisor Game”.  The session will use role play to give supervisors the opportunity to practice responding to employee comments and concerns about work conditions.

Not to be missed this year are the Conference’s four anchor sessions.  During the opening session of the conference, Buddy Hobart, author of Gen Y Now, will kick off the conference with his session on Millennials and the Evolution of Leadership.  A visionary leader for training and development in construction, J. Doug Pruitt, former chairman and CEO of Sundt Construction, will close the first day of the conference with his session based on the book Level Headed: Inside the Walls of One of the Greatest Turnaround Stories of the 21st Century.  Pruitt’s session is ideal for HR and training professionals who are interested in taking a more strategic approach to construction HR and training management by understanding the needs of a CEO who is working to build or maintain a profitable construction company with a far-reaching reputation and long-lasting legacy.  On the final day of the conference, retired police commissioner, Bo Mitchell, will share best practices for planning and training employees for active shooter and other workplace violence situations. And to close out the conference, Mike Byam, author of The WOW! Workplace will share best practices for developing a culture of recognition in order to retain your best employees. 

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


Help AGC Strengthen Legislative Efforts

You have an opportunity to help AGC of America and its chapters gauge the reach of our collective networks and enable us to effectively plan for future public policy discussions. By understanding our network of relationships with elected officials, we can build advocacy programs that help advance our positions on any number of issues that directly impact the construction industry. 

You have an opportunity to help AGC of America and its chapters gauge the reach of our collective networks and enable us to effectively plan for future public policy discussions. By understanding our network of relationships with elected officials, we can build advocacy programs that help advance our positions on any number of issues that directly impact the construction industry.

As an employee, voter, volunteer, and contributor to the communities where you live and work, your voice and opinion is extremely influential. Through this brief survey you can provide information on the issues that are important to you, the stakeholders within your network, and the level of advocacy you would be willing to undertake on the association's behalf.

The survey will take very little of your time, but your participation will make a tremendous difference. There is no right or wrong answer to any of the questions, we simply ask for your honest feedback.

Take survey.

If you have any questions, please contact AGC of America staff member David Ashinoff at ashinoffd@agc.org or (202) 547-5013.


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