AGC's Human Resource and Labor News - June 22, 2016 / Issue No. 03-16 (Print All Articles)

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FLSA Salary Threshold Increases to $47,476/Year; Duties Test not Changed

The U.S. Department of Labor’s Wage and Hour Division (WHD) has released a final rule implementing changes to the Fair Labor Standards Act (FLSA) overtime regulations. The most significant change is a doubling of the standard salary threshold for exempt employees – from $455 per week ($23,660 per year) to $913 per week ($47,476 per year). The rule takes effect on December 1, 2016.

The U.S. Department of Labor’s Wage and Hour Division (WHD) has released a final rule implementing changes to the Fair Labor Standards Act (FLSA) overtime regulations.  The most significant change is a doubling of the standard salary threshold for exempt employees – from $455 per week ($23,660 per year) to $913 per week ($47,476 per year).  The rule takes effect on December 1, 2016.

Other key aspects of the rule include:

  • Employers will be able to use nondiscretionary bonuses and incentive payments, including commissions, to satisfy up to 10 percent of the standard salary level, provided payments are made on at least a quarterly basis. 
  • The salary threshold for highly-compensated individuals will increase from $100,000 to $134,004. Bonus and incentive payments still may not count toward this threshold. 
  • The salary thresholds (for both the standard and highly-compensated employee exemptions) will automatically increase every three years.
  • No changes were made to the highly-debated duties test.

In 2015, AGC sent individual comments to WHD on its proposed rule and signed onto joint comments submitted by the Partnership to Protect Workplace Opportunity (PPWO) coalition.  These comments raised strong concerns that the proposed salary threshold of $970 per week ($50,440 per year) would be too large an increase for employers to absorb all at once.  AGC recommended, among other things, that WHD set a threshold of no more than $37,500 and phase in the increase over time.  While WHD did not accept all of AGC’s and the PPWO’s recommendations, the final rule does establish a lower salary threshold than originally proposed.  WHD’s concession for bonuses and commissions and its abstinence from changing the duties test are also consistent with AGC’s recommendations.

AGC will continue to monitor any developments in Congress or the courts that stop or limit the rule, and will notify members accordingly.   Meanwhile, members are well-advised to begin carefully reviewing compensation practices to determine whether any employees now classified as exempt are paid a salary of at least $455 per week but less than $913 per week, as such employees will no longer qualify for exemption.   Under the new rule, employers must either (1) begin keeping track of such employees’ work hours and pay them overtime in accordance with FLSA mandates, or (2) increase their pay to meet the new salary threshold.  AGC recommends seeking the assistance of an employment lawyer licensed to practice in your state with any concerns or complications.

For more information, contact Tamika Carter at cartert@agc.org, Denise Gold at goldd@agc.org or visit www.dol.gov/overtime.


Labor Department Issues New FMLA Guide and Poster for Employers

The U.S. Department of Labor (DOL) recently published a new guide for employers called “The Employer’s Guide to the Family and Medical Leave Act (FMLA).” The FMLA provides certain employees with up to 12 weeks of unpaid, job-protected leave per year for certain family and medical reasons.

The U.S. Department of Labor (DOL) recently published a new guide for employers called “The Employer’s Guide to the Family and Medical Leave Act (FMLA).”  The FMLA provides certain employees with up to 12 weeks of unpaid, job-protected leave per year for certain family and medical reasons. 

The guide addresses several basic topics of interest to employers, including but not limited to:

  • Who is a covered employer;
  • When an employee may qualify for FMLA leave;
  • The FMLA certification process;
  • Managing FMLA leave while the employee is absent;
  • Military exigency and caregiver leave; and
  • Prohibited employer conduct in connection with FMLA leave.

For seasoned HR professionals, the guide includes special sections that highlight lesser-known aspects of the FMLA.  While the guide is a reference upon which both new and experienced HR professionals can rely, DOL explains that the guide is “intended as general information only and does not carry the force of legal opinion.” 

In addition to the new guide, DOL also released a revised FMLA poster for employers that replaces the last poster published in 2013.  All covered employers are required to display and keep displayed a poster prepared by the Department of Labor summarizing the major provisions of the FMLA. The poster must be displayed in a conspicuous place where employees and applicants for employment can see it, even if there are no eligible employees. The new poster is more employee-friendly with added language for how to file a complaint. DOL, however, acknowledges that employers are not required to use the new, 2016 version, but the 2013 version is no longer available online. The new poster may be downloaded from the DOL website.

For more information on the FMLA, visit DOL’s website or you may visit AGC’s Labor and HR Topical Resources webpage.  On the AGC website, first login as an AGC member, then select the primary category “Leave” and the secondary category “Family and Medical Leave Act.”


AGC Urges Court to Overturn NLRB Expansion of Joint Employer Standard

AGC and seven other trade associations on June 15 jointly filed an amicus brief with the U.S. Court of Appeals for the D.C. Circuit in the Browning-Ferris Industries case concerning the definition of “joint employer” under the National Labor Relations Act. The brief supports Browning-Ferris Industries’ appeal of the August 2015 National Labor Relations Board decision expanding that definition. It supplements the appeal by emphasizing the adverse impact of the decision on the U.S. economy in general and in the construction, healthcare, hospitality, retail, and franchising industries in particular.

AGC and seven other trade associations on June 15 jointly filed an amicus brief with the U.S. Court of Appeals for the D.C. Circuit in the Browning-Ferris Industries case concerning the definition of “joint employer” under the National Labor Relations Act.  The brief supports Browning-Ferris Industries’ appeal of the August 2015 National Labor Relations Board decision expanding that definition.  It supplements the appeal by emphasizing the adverse impact of the decision on the U.S. economy in general and in the construction, healthcare, hospitality, retail, and franchising industries in particular.

For 30 years prior to last year’s decision, the Board found an employer to be a “joint employer” of another company’s employees only if the employer exercised direct control over the employees’ essential terms and conditions of employment.  Under the new standard, the Board may find “joint employer” status even when the employer merely exercises indirect control over, or has simply reserved the right to control, terms and conditions of employment.

AGC’s amicus brief argues that the Board’s decision not only lacks legal validity, it “is tone deaf to the practicalities of American business and threatens to undermine a broad range of business relationships which are vital to the nation’s economy.”  Furthermore, “the murky guidance provided in the [decision] makes it virtually impossible for businesses to apply the new standard with any confidence as to whether they are getting it right.”

The brief discusses how the decision impacts the commercial construction industry.  It describes the role of general contractors in coordinating schedules and work of multiemployer worksites and the resulting need to exercise a certain amount of control over subcontractors and their employees to ensure safety and efficiency.  The brief explains:

A prime construction contract with a project owner inevitably requires the contractor to exercise control over the project in ways that impact the terms and conditions of everyone’s employment on the site…To meet these obligations, a prime contractor frequently includes a variety of clauses in its subcontracts, such as clauses that require subcontractors to: remove or terminate employees on the general contractor’s demand; employ only workers who are approved by the general contractor; employ only workers who pass drug tests; receive general contractor approval before working overtime; work only during certain times of the day or certain days of the week; comply with pre-assignment procedures such as criminal background checks; follow specific safety rules, including attending safety meetings, wearing protective gear on site, and reporting accidents and injuries; and follow work rules established by the general contractor. Under [the Board’s decision], merely maintaining these compliance-related requirements may be sufficient to establish a joint employer relationship.

AGC will continue to closely monitor the case and report on significant developments.  Meanwhile, AGC members can find guidance on managing the risks presented by the Board’s decision in AGC’s online Labor & HR Topical Resources library.  To access, go to www.agc.org/topicalresources, login as an AGC member using the Login button in the upper left corner, then choose “Unions/NLRA” from the main category pull-down menu and “Joint Employer” from the subcategory pull-down menu.

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


NLRB Decision Limiting Right to Replace Strikers May Signal a New Paradigm

On May 31, 2016, the National Labor Relations Board (“NLRB” or “Board”) issued a decision holding that an employer's right to hire permanent replacement for economic strikers is not unlimited, and that an employer must be circumspect about its reasons for seeking permanent replacements or risk substantial penalties. The case is American Baptist Homes of the West (“American Baptist”), and has ominous overtones for the future.

On May 31, 2016, the National Labor Relations Board (“NLRB” or “Board”) issued a decision holding that an employer's right to hire permanent replacement for economic strikers is not unlimited, and that an employer must be circumspect about its reasons for seeking permanent replacements or risk substantial penalties. The case is American Baptist Homes of the West (“American Baptist”), and has ominous overtones for the future.

Since the Supreme Court's 1938 decision in Mackay Radio, it has been well-established that a private-sector employer subject to the National Labor Relations Act (“NLRA”) may hire permanent replacements for employees who go on strike over contract proposals. The replaced strikers are not "fired;" instead they are placed on a preferential hire list to be offered reinstatement if and when an employee hired as a permanent replacement for them quits, is fired, or other otherwise leaves the job.

In its American Baptist decision, the Board found that American Baptist hired permanent replacements not simply to be able to continue to run its business during a strike, but to punish the employees and “teach them a lesson” for striking. Relying on a Board case from 1964, Hot Shoppes, the Board found unlawful motivation sufficient to make the employer's hiring of permanent replacements an unfair labor practice.
 
The immediate impact is that American Baptist is to terminate any remaining permanent replacements and offer reinstatement to replaced strikers with back pay to August 7, 2010, the date the offer to return to work was made—approximately 5½ years of back pay. However, the long-term ramifications of the decision are even more ominous.  Ultimately, this may be the beginning of a trend leading to weakening or eliminating a significant economic weapon employers have been permitted to use for almost 80 years.

Brief Summary of Facts

The American Baptist case is only the second one to apply the 1964 Hot Shoppes decision. However, given the facts reported in the decision, it is not really a surprising result. American Baptist's negotiations were apparently contentious, and continued well after the collective bargaining agreement's expiration date of April 30, 2010. The employees engaged in some picketing, without striking, and, eventually, notified the employer they were going on strike.
 
The strike notification was delivered to the employer in two letters from the union, each sent on the same day, July 9. One letter advised that the employees were going on strike on August 2. The second letter advised that all of the striking employees “unconditionally offer to return to work at or after 5:00 a.m. on Saturday, August 7, 2010.” In other words, it was going to be a five-day strike.
 
Through a staffing agency, the employer arranged for enough temporary employees to work the first three days of the five-day strike. It also began seeking permanent replacements for the strikers immediately, and actually extended offers to 44 persons as permanent replacements by the end of the 4th day of the 5 day strike. On August 6, the employer began contacting the employees who had been replaced permanently, telling them that their names were being placed on a preferential hire list to be offered reinstatement if their replacement left in the future.
 
Not only was the timing of this hiring suspicious, given that the employer had been told all the strikers were returning the next day, but comments made by both the employer's executive director and its attorney established to the Board majority's satisfaction that the employer's motivation was not simply to weather the strike and continue operations:  the executive director was quoted as saying that she hired the permanent replacements because she figured that if they would work through this strike, they would work through future strikes, and the employer would not need to pay temporary staffing agencies to weather strikes in the future.  The employer's attorney was quoted as telling the union's attorney that the employer “wanted to teach the strikers and the Union a lesson. They wanted to avoid any future strikes, and this was the lesson that they were going to be taught.”
 
Discussion
 
Any attempt to interfere with, or coerce employees with respect to, the exercise of rights protected by the NLRA, such as the right to strike, is an unfair labor practice. The Board majority in American Baptist found that wanting to “teach them a lesson” amounted to wanting to punish the employees for exercising their statutory right to strike.  The Board held that an employer is not privileged to hire permanent replacements if that is the employer's motivation.  
 
Given the recitation of facts that seem clearly to evince a motivation to punish striking employees, the result in American Baptist may not be alarming. To avoid such a result in the future, employers hiring permanent replacements need to be careful not to take actions or make statements implying any motivation to interfere with employees’ protected NLRA rights. Instead, employers should focus their efforts, and their comments internally and externally, on ensuring continued operations during a strike. There are legitimate reasons why permanent replacements may be more likely to achieve that objective than temporary replacements, and those reasons should be stressed.
 
However, the long-term concern arising from this decision is that it may signal a paradigm shift in the analysis and burden of proof applied regarding the hiring of permanent replacements during strikes.  Those who oppose the hiring of permanent replacements will undoubtedly stretch to argue that, after American Baptist, in order to hire permanent replacements an employer must always prove that its motivation is solely to continue operations during a strike—something that was never contemplated by the Supreme Court in Mackay Radio, and something that neither the Board nor any court has ever held.  If the opponents of the practice of hiring permanent replacements succeed in convincing the Board to adopt such a rule, it would represent a sea change in the existing balance of economic weapons in the collective bargaining process. Employers and their attorneys need to be vigilant to guard against such an erosion of employer rights.


Editor’s note:  This article was written by guest author Michael Boldt of the law firm Ice Miller.  For more information, contact Mr. Boldt or another member of Ice Miller’s Labor and Employment group.  The article is intended for general information only; it does not, and is not intended to, constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.


Common Control for Purposes of Withdrawal Liability is Determined at Time Covered Work Resumes Rather than Time of Withdrawal, 10th Circuit Rules

A large construction company with many subsidiaries triggered withdrawal liability of almost $1 million under controlled group liability principles in the Multiemployer Pension Plan Amendment Act (“MPPAA”) when it purchased a nonunion construction company.

A large construction company with many subsidiaries triggered withdrawal liability of almost $1 million under controlled group liability principles in the Multiemployer Pension Plan Amendment Act (“MPPAA”) when it purchased a nonunion construction company.

In the view of the federal 10th Circuit Court of Appeals (CO, KS, NM, OK, UT, WY) in Ceco Concrete Constr., LLC. v. Centennial State Carpenters Pension Trust, the purchased subsidiary performed work of the same type for which another subsidiary had previously made (but had ceased making) pension contributions to a multiemployer pension plan. This triggered withdrawal liability under the MPPAA’s building and construction industry rules.

Company Lets CBA Expire, Then Parent Buys Nonunion Competitor

Construction employers are treated more generously than most other employers under the MPPAA.   For most employers, if they cease to have an obligation to contribute to a plan or cease covered operations, withdrawal liability is triggered.  Building and construction industry employers do not trigger withdrawal liability when they cease having an obligation to contribute unless, after ceasing the contribution obligation, the employer either continues covered operations or resumes them within five years.

Ceco Concrete Construction, LLC, decided it could no longer compete effectively as a union contractor against nonunion contractors.  Ceco had a collective bargaining agreement that required it to make contributions to the Centennial State Carpenters Pension Trust in Colorado, and it decided to allow its collective bargaining agreement with the carpenters’ union to expire effective May 1, 2010.  Approximately six months later, on October 1, 2010, Ceco’s parent company, Heico Holdings, Inc., purchased CFA, a nonunion construction company that performs the same type of construction work that Ceco did in the same market.  In fact, Ceco and CFA had been competitors.  Heico, Ceco and CFA are under “common control” and are a common-control group.

Appeals Court Affirms Withdrawal Liability

The pension fund assessed withdrawal liability.  Ceco contested the assessment and argued it could not be held liable for withdrawal liability, because once it ceased performing work for which contributions were required, it never resumed such work.  The pension fund responded that Ceco was liable, because the work of CFA (the subsequently-acquired subsidiary) established the common-control group, which is the “employer” under the MPPAA, started to perform work for which contributions were required within a five-year period.

Ceco’s response to this argument was that only parties under common control on the date the obligation to contribute ceased could incur liability under the building and construction industry rules in the MPPAA. Previous court decisions on this issue supported Ceco’s interpretation, and both an arbitrator and the federal district court for Colorado agreed with Ceco, finding the assessment of withdrawal liability improper.

Nevertheless, the appeals court disagreed.  It found that, under the law’s building and construction industry rules, “withdrawal liability may be assessed against all entities in the common control group at the time of continuation or resumption of covered work.”  (Emphasis added.)  Therefore, Ceco, its holding company, and all other members of the common control group were liable for the withdrawal liability.

The court recognized that its ruling conflicts with other jurisdictions, such as the 7th Circuit Court of Appeals and various federal district courts.  It may eventually require a U.S. Supreme Court decision to resolve this conflict within the federal courts.

Bottom Line

Construction employers that are acquiring other entities should scrutinize potential multiemployer pension plan withdrawal liability issues which may arise through the operation of their acquired companies.

Editor’s Note:  This article was written by guest author Ruth Marcott of the law firm Felhaber Larson in Minneapolis, MN. She can be reached at 612-373-8545 or Rmarcott@felhaber.com.

For additional resources on withdrawal liability, visit AGC’s Labor & HR Topical Resources webpage. Log in as an AGC member using the Login button in the top left corner, then select the category “Wages and Benefits” and the subcategory “Multiemployer/Taft-Hartley Benefit Plans & Trust Funds.”


EEOC Issues Final Rules on Employer Wellness Programs

On May 16, 2016, the U.S. Equal Employment Opportunity Commission (EEOC) issued final rules on employer-sponsored wellness programs. The final rules clarify the EEOC’s position on wellness plan compliance with the Americans with Disabilities Act (ADA) and Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA). The final rules also attempt to reconcile differences between the Health Insurance Portability and Accountability Act of 1996 (HIPAA), as amended by the Affordable Care Act, and the EEOC’s proposed rules relating to wellness programs, which were released last year. Employers now have a clearer roadmap to follow when designing voluntary workplace wellness programs.

On May 16, 2016, the U.S. Equal Employment Opportunity Commission (EEOC) issued final rules on employer-sponsored wellness programs. The final rules clarify the EEOC’s position on wellness plan compliance with the Americans with Disabilities Act (ADA) and Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA). The final rules also attempt to reconcile differences between the Health Insurance Portability and Accountability Act of 1996 (HIPAA), as amended by the Affordable Care Act, and the EEOC’s proposed rules relating to wellness programs, which were released last year. Employers now have a clearer roadmap to follow when designing voluntary workplace wellness programs.

Here are several points about the new rules that are worth noting.

Applicability

In a departure from the proposed rules the EEOC released last year, the final rules relating to the ADA apply to all employer-sponsored wellness programs that include disability-related inquiries or medical examinations—whether those programs are part of, or outside of, a group health plan.

Incentives

The final rules confirm the EEOC’s position that wellness programs cannot offer financial incentives in excess of 30 percent of the total cost of self-only coverage (including both the employee and employer contributions).

However, if the employee and the spouse both are offered the opportunity to participate in the wellness program, the 30 percent threshold applies to the employee and the spouse individually. To illustrate how this works, the final GINA rule provides the following example:

[I]f an employee is enrolled in health insurance through the employer at a total cost (taking into account both employer and employee contributions toward the cost of coverage) of $14,000 for family coverage, that plan has a self-only option for $6,000, and the employer provides the option of participating in a wellness program to the employee and spouse because they are enrolled in the plan, the employer may not offer more than $1,800 to the employee and $1,800 to the spouse.

If the employer does not offer group health plan coverage, the reward cannot exceed 30 percent of the cost of self-only coverage under the second lowest cost Silver Plan for a 40-year-old non-smoker on the state or federal health care Exchange in the location that the covered entity identifies as its principal place of business.

Smoking Cessation Reward Discrepancy

The final rules acknowledge the discrepancy between the EEOC’s 30 percent reward limit and HIPAA’s 50 percent reward limit for smoking cessation programs but state that the EEOC and HIPAA limits are not at odds because the EEOC’s lower limit does not apply to smoking cessation programs that merely ask employees or spouses whether they use tobacco (or whether or not they ceased using tobacco upon completion of the program). The EEOC’s 30 percent reward limit does apply, however, to any smoking cessation program that includes a medical examination (for example, a wellness program that uses a blood test to measure nicotine levels). The EEOC states in a footnote it is issuing the final rules after review by and consultation with the U.S. Department of the Treasury, the U.S. Department of Labor, and the U.S. Department of Health and Human Services, which means that employers should consider which plan designs permit a 30 percent limit and which permit a 50 percent limit when designing their 2017 smoking cessation programs.

Notice Requirement

The final rules require employers to provide notices with specific content requirements in connection with wellness programs. The EEOC will publish a model notice on its website within 30 days. 

The final rules will apply as of the first day of the first plan year that begins on or after January 1, 2017.

Editor’s Note: This article was drafted by attorneys Jeanne E. Floyd and Karen Trapnell Shriver of Ogletree Deakins, a labor and employment law firm representing management, and is reprinted with permission. This information should not be relied upon as legal advice.

For information on AGC’s comments to the proposed rule, click here.  For additional information on the final rules including Q&A documents and information for small employers, visit the EEOC’s website.

For additional resources related to wellness programs, GINA, and the ADA, visit AGC’s Labor & HR Topical Resources webpage.  On the AGC website, first login as an AGC member, then select the primary category “EEO” and the secondary categories “Americans with Disabilities Act” and/or “Genetic Information.” Information on wellness programs may be located in the primary category “Wages and Benefits” and the secondary category “Wellness Programs.”


EEOC Issues Guidance on Leave as a Reasonable Accommodation for People with Disabilities

On May 9, the Equal Employment Opportunity Commission (EEOC) issued new guidance for employers that addresses the rights of employees with disabilities who seek leave as a reasonable accommodation under the Americans with Disabilities Act of 1990 (ADA). The document, Employer-Provided Leave and the Americans with Disabilities Act, responds to common questions employers and employees have raised about leave requests that concern an employee’s disability.

On May 9, the Equal Employment Opportunity Commission (EEOC) issued new guidance for employers that addresses the rights of employees with disabilities who seek leave as a reasonable accommodation under the Americans with Disabilities Act of 1990 (ADA).  The document, Employer-Provided Leave and the Americans with Disabilities Act, responds to common questions employers and employees have raised about leave requests that concern an employee’s disability. 

The EEOC explains that the release of the document does not create new agency policy since regulations already provide that reasonable accommodations may include leave, potentially including unpaid leave that exceeds a company’s normal leave allowances.  Instead, the resource is intended to help educate employers and employees about workplace leave under the ADA to prevent discriminatory denials of leave from occurring by consolidating existing guidance on ADA and leave into one place, addressing issues that arise frequently regarding leave as a reasonable accommodation, including the interactive process, maximum leave policies, “100 percent healed” policies, and reassignment. 

Employer undue hardship is also addressed, including issues related to the amount and/or length of leave required, the frequency of leave, the predictability of intermittent leave, and the impact on the employer’s operations and its ability to serve customers and clients in a timely manner.  

For more information on the EEOC and the ADA, visit the EEOC’s website and AGC’s Labor and HR Topical Resources webpage.  On the AGC website, first login as an AGC member to access all resources, then select the primary category “EEO” and the secondary category “Americans with Disabilities” Act.


OFCCP Finalizes Sex Discrimination Rule

On June 14, the Office of Federal Contract Compliance Programs (OFCCP) published its final rule requiring federal and federally-assisted contractors to meet the provisions of Executive Order 11246 prohibiting sex discrimination in employment. This rule updates sex discrimination guidelines from 1970 with new regulations that align with current law and address the realities of today’s workplaces. The rule takes effect on August 15

On June 14, the Office of Federal Contract Compliance Programs (OFCCP) published its final rule requiring federal and federally-assisted contractors to meet the provisions of Executive Order 11246 prohibiting sex discrimination in employment. This rule updates sex discrimination guidelines from 1970 with new regulations that align with current law and address the realities of today’s workplaces. The rule takes effect on August 15.

The rule explains contractors’ responsibilities and clarifies protections for employees of federal and federally assisted contractors and subcontractors on issues related to pay discrimination, sexual harassment, pregnancy accommodations, childbirth and related medical conditions, gender identity, and stereotypes about sex roles such as who the primary caregiver is in a family.

Pregnancy accommodations.  The rule requires that contractors provide workplace accommodations, such as extra bathroom breaks and light-duty assignments, to an employee who needs such accommodations because of pregnancy, childbirth, or related medical conditions, in certain circumstances where those contractors provide comparable accommodations to other workers, such as those with disabilities or occupational injuries.

Pay Practices. Contractors may not pay workers differently because of their sex. For instance, contractors may not deny opportunities for overtime work, training, better pay, or higher-paying positions because of a worker’s sex. The rule also includes a provision that enables employees to recover lost wages any time a contractor pays compensation that is the result of discrimination, not only when the decision to discriminate is made.

Fringe Benefits. The rule requires contractors to provide equal benefits to male and female employees participating in fringe-benefit plans. The rule prohibits discrimination on the basis of sex with regard to fringe benefits such as medical, hospital, accident, life insurance, and retirement benefits; profit-sharing and bonus plans; leave; and other terms, conditions, and privileges of employment.

Sexual Harassment. The rule prohibits unwelcome sexual advances, requests for sexual favors, offensive remarks about a person’s sex, and other verbal or physical conduct of a sexual nature when such conduct unreasonably interferes with an individual’s work performance, becomes the basis for employment decisions, or creates a hostile working environment.

Work assignments and job training.  The rule gives men and women equal access to jobs and workforce development opportunities. A contractor may not set requirements for jobs or training that are based on an applicant’s or employee’s sex unless the contractor can meet the high bar of demonstrating that such requirements are a bona fide occupational qualification. Additionally, a contractor may not set requirements, such as height or weight qualifications, that adversely affect applicants because of their sex unless it demonstrates that the qualifications are job-related and consistent with business necessity.

Caregiver protections.  The rule protects the rights of workers who provide caregiving to their loved ones. Contractors may not treat female or male employees or applicants differently based on the stereotypical assumption that women are more likely to have caregiving responsibilities. For instance, contractors may not deny mothers employment opportunities that are available to fathers based on the faulty assumption that mothers’ childcare responsibilities will conflict with their job performance. Similarly, contractors may not deny fathers flexible workplace arrangements that are available to mothers based on the faulty assumption that men do not have and do not assume childcare responsibilities.

Transgender workers. The rule makes clear that sex discrimination includes discrimination because of an employee’s gender identity. Also, the rule requires contractors to allow workers to use bathrooms, changing rooms, showers, and similar facilities consistent with the gender with which the workers identify. In addition, the preamble to the rule notes that an explicit, categorical exclusion of coverage for all care related to gender dysphoria or gender transition is facially discriminatory because such an exclusion singles out services and treatments for individuals on the basis of their gender identity or transgender status.

Sex stereotypes. Contractors may not treat employees or applicants adversely because they fail to comply with expectations about how women and men should look or act or what kinds of jobs they should do.

Contractors are encouraged to review their policies and practices to ensure that they are in line with the requirements of the new rule as well as provide training to staff on what is not acceptable in the workplace when it comes to sex discrimination and harassment.  AGC’s construction-themed DVD, Diversity Rules: Harassment, Sensitivity and Correction Training for Construction Workers and Supervisorsmay be a great resource for contractors.

For more information about the rule, including frequently-asked-questions and a fact sheet, visit www.dol.gov/ofccp/sexdiscrimination.


OFCCP Sets 2016 VEVRAA Hiring Benchmark at 6.9 Percent

The Office of Federal Contract Compliance Programs (OFCCP) recently published its 2016 annual Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) Benchmark. The benchmark is 6.9 percent and reflects the national percentage of veterans in the civilian labor force for 2016, as determined by the Bureau of Labor Statistics (BLS). The new number is a slight decrease from last year’s 7 percent benchmark.

The Office of Federal Contract Compliance Programs (OFCCP) recently published its 2016 annual Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) Benchmark.  The benchmark is 6.9 percent and reflects the national percentage of veterans in the civilian labor force for 2016, as determined by the Bureau of Labor Statistics (BLS). The new number is a slight decrease from last year’s 7 percent benchmark. 

OFCCP’s revised VEVRAA regulations implementing affirmative action requirements of federal contractors and their subcontractors went into effect on March 24, 2014. 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 from 8 percent to now, 6.9 percent.  Employers responsible for complying with the regulations by having a written affirmative action plan should use the new 6.9 percent benchmark, or an independently derived benchmark as outlined in the regulations. The benchmark is subject to change annually and will be published in OFCCP’s VEVRAA Benchmark Database.  

For more information on OFCCP’s veterans rule and other issues related to affirmative action requirements for construction employers, visit the Labor & HR Topical Resources.  The primary category is “EEO” and the secondary category is “Affirmative Action/EEO.”  Logging-in is required to access all available resources.


10 Reasons to Attend AGC’s 2016 Construction HR and 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. Here are the top 10 reasons to attend this year’s event.

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.  Here are the top 10 reasons to attend this year’s event.

  1. The pre-conference Federal Construction HR Workshop, sponsored by E-Mars, will feature sessions on “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).”

  2. This year’s conference and workshop have been pre-approved for 13.25 recertification credits toward PHR, SPHR and GPHR recertification through the HR Certification Institute (HRCI). For those who are SHRM-certified, inputting sessions manually is a great option for obtaining credit toward your SHRM-CP or SHRM-SCP certification.  Just print and maintain a copy of the conference agenda for future reference.

  3. 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.

  4. Training and workforce development professionals will appreciate sessions on “Building a Successful Future with Generation Next”, “Developing Future Leaders”, “Setting the Starting Line for New Managers”, and “Keeping Your People Safe by Modernizing the Way They Learn on the Job.”

  5. HR professionals will appreciate sessions on the “Top 10 HR Best Practices Contractors Should Adopt to Avoid Getting Sued by Their Employees”, “Using KRA-based Job Descriptions in Construction”, and “Labor & Employment Law Changes that Impact Construction.”

  6. Lunch on Thursday isn’t just lunch – it’s a roundtable discussion! Pre-register for one of six roundtable lunch discussions to talk through specific challenges faced by construction training and HR professionals today, with timely, effective and proven solutions.

  7. There will be great networking opportunities, including the HR and TED Forums Networking Dinner and Chicago Architecture Foundation River Cruise which are both open to all attendees.

  8. 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 start 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.

  9. Learn about products and services that are uniquely catered for use by construction training and HR professionals in the conference exhibit hall.  This year’s exhibitors are BirdDog HR, NCCER, E-Mars, PAS Inc., Project Leadership Academy, the AGC Alternative and FMI.  The Federal Construction HR Workshop will include a demo of the E-Mars Davis-Bacon software system, and breakfast on Thursday and Friday will showcase demos of products and services offered by NCCER, BirdDog HR, the AGC Alternative, and the Project Leadership Academy.

  10. Take advantage of the $100 early-bird discount when registering before August 29.

See full session descriptions, schedule, and registration information at www.agc.org/hr_ted.  


Labor Lawyers & Managers Gather to Hear Latest Developments in Construction Labor Law

The AGC Labor and Employment Law Council (LELC) recently held its 32nd Annual Construction Labor Law Symposium in Washington, DC.  Attorneys and chapter labor relations managers from across the country learned about the latest developments in labor and employment law and the significance for construction employers.

The AGC Labor and Employment Law Council (LELC) recently held its 32nd Annual Construction Labor Law Symposium in Washington, DC.  Attorneys and chapter labor relations managers from across the country learned about the latest developments in labor and employment law and the significance for construction employers.

The event began with a pre-symposium workshop on joint employer law.  LELC-member attorneys Larry Marquess, John Prager, Al Robinson, Ron Rasley, and Robert Fried provided presentations on the legal and practical concerns involved in a construction contractor being deemed a “joint employer” of another company’s employees under the National Labor Relations Act (NLRA), Fair Labor Standards Act, or Occupational Safety and Health Act.

The symposium itself kicked off the following day with a presentation by Richard Griffin, Jr., the general counsel of the National Labor Relations Board.  Mr. Griffin also addressed joint employer issues in light of the Board’s recent decision in Browning-Ferris Industries, which broadened the definition of “joint employer” under the NLRA.  When applying the test set forth in that case, Griffin said, one should begin by assessing whether the putative employer is a statutory employer under the NLRA.  If so, then assess whether that employer “meaningfully affects” essential terms and conditions of employment.  If so, then the company could be a joint employer.  Griffin conceded that the decision provides “no relief” for those seeking certainty.  When the Board changes a legal standard as it did there, we must wait and see how the standard develops as cases arise.  Because the Board’s current standard is like the standard applied before 1984, he continued, looking at pre-1984 is useful in predicting how the present standard is likely to apply in the construction industry.

Dr. David Weil, the administrator of the U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD), also spoke at the symposium.  He talked about his “three-pronged approach” to increasing employer compliance with wage and hour laws, which involves the use of:  (1) enforcement tools; (2) outreach and education; and (3) strategic partnerships.  He talked about how enforcement is affected by the “fissured workplace,” which is Dr. Weil’s term for describing the blurred lines between workers and businesses as companies increasingly contract out labor and related services.  Dr. Weil indicated that he sees construction as a quintessential “fissured” industry, noting that independent contractor misclassification in the industry (and elsewhere) is a major concern for WHD as well as its state counterparts.  The administrative interpretation he issued last year on independent contractor classification is an example of the “outreach and education” approach, he said.  As an example of the strategic partnership prong, Dr. Weil cited cooperative efforts with Paul Johnson Drywall, a construction contractor that regularly used a labor broker engaged in elaborate misclassification. 

Dr. Weil also talked about WHD’s current initiatives in Davis-Bacon Act administration.  He reported that the agency has increased Davis-Bacon investigations over the past year, particularly going after companies that make noncompliance a part of their business model.  WHD also is working with contracting agencies more to enhance enforcement, he said.  He spoke further about WHD’s outreach and education efforts in the Davis-Bacon arena, including AGC-supported efforts to increase contractor participation in wage surveys.  He took the opportunity to reiterate prior statements by other WHD officials intended to dispel the notion that survey participation will render a company an enforcement target.

Debra Carr, the director of the Division of Policy and Program Development within DOL’s Office of Federal Contract Compliance Programs (OFCCP) provided the Charles E. Murphy Keynote Address.  In addition to reporting on OFCCP’s current regulatory and enforcement priorities, Carr engaged the audience in a dialogue about how the federal government can help the construction industry recruit more women and minorities into the construction trades.  Carr and AGC hope to follow up with a broader discussion of the topic in a meeting not only with OFCCP but also DOL’s Employment and Training Administration and the Department of Education.

The symposium also featured presentations by LELC members such topics as:  the top wage-and-hour sins leading to litigation and audits for construction contractors; the pitfalls of “BYOD” and other mobile device policies; the NLRB’s approach to confidentiality policies, codes of conduct, and other employer policies; marijuana and opiates in the workplace, and the NLRB’s non-deferral to arbitration.  

Handouts from the symposium and pre-symposium workshop are posted in the Labor & HR Topical Resources area of AGC’s website.  You login to the AGC website at www.agc.org as an AGC member to access the documents.  Once logged in, you can find the program handouts organized by topic category and subcategory.  Click here for more information on where to find each handout. 

The LELC is a private network of labor lawyers who represent AGC members and chapters.  The LELC 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 LELC. To view a list of current LELC members, click here.  For a searchable directory of LELC members, click here.  For information about LELC membership, click here, or contact Denise Gold at goldd@agc.org or (703) 837-5326.

 


Joint Employer Law Workshop Panelists

 


NLRB General Counsel Richard Griffin

 


Wage and Hour Administrator David Weil

 


OFCCP Director of Policy and Program Development Debra Carr

 

 


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