AGC's Human Resource and Labor News - September 1, 2016 / Issue No. 04-16 (Print All Articles)

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Administration Releases Fair Pay & Safe Workplaces Final Rule & Guidance

Complimentary AGC WebED Sept. 7

On August 25, the Federal Acquisition Regulation (FAR) Council and U.S. Department of Labor released a final rule and guidance, respectively, to implement the “Fair Pay and Safe Workplaces” Executive Order 13673, commonly called the Blacklisting Executive Order. The order requires federal contractors and their subcontractors to disclose past labor and employment law violations as a condition of receiving a contract award. It also requires such contractors to provide certain pay information to employees and independent contractors, and it limits the use of mandatory arbitration of employment-related disputes. AGC has been actively working with Congress to undo this initiative and is prepared to pursue legal action. 

On August 25, the Federal Acquisition Regulation (FAR) Council and U.S. Department of Labor released a final rule and guidance, respectively, to implement the “Fair Pay and Safe Workplaces” Executive Order 13673, commonly called the Blacklisting Executive Order.  The order requires federal contractors and their subcontractors to disclose past labor and employment law violations as a condition of receiving a contract award.  It also requires such contractors to provide certain pay information to employees and independent contractors, and it limits the use of mandatory arbitration of employment-related disputes.  AGC has been actively working with Congress to undo this initiative and is prepared to pursue legal action.  

Certain provisions of the sweeping regulations will be implemented as early as October 25, 2016. As such, AGC has put out more thorough analysis of the rule, with detailed timelines, available here .  In addition, AGC will hold a webinar for contractors – complimentary for AGC members, $49 for non-members—on September 7 from 2:00 to 3:00 p.m. Eastern Daylight Time.  Click here for webinar details and registration.

For more info on the rule, contact Jimmy Christianson at 703-837-5325 or christiansonj@agc.org.


Employers Must Update Two Federal Employment Law Posters

With little notice, the U.S. Department of Labor (DOL) revised two federal employment law posters – the Federal Minimum Wage poster and the Employee Polygraph Protection Act poster. As a result, employers must immediately ensure that the new posters are properly displayed.

With little notice, the U.S. Department of Labor (DOL) revised two federal employment law posters – the Federal Minimum Wage poster and the Employee Polygraph Protection Act poster.  As a result, employers must immediately ensure that the new posters are properly displayed.

There are two notable changes to the federal minimal wage poster.  The federal minimum wage, itself, did not change.  However, information on the rights of nursing mothers to receive breaks for expressing breast milk was added, and text regarding child labor was removed.

As for the Employee Polygraph Protection Act poster, minor changes included an updated toll-free phone number along with the addition of a TTY phone number for the hearing impaired.

Civil penalty limits were removed from both posters.


EEOC Issues Enforcement Guidance on Retaliation

On August 29, the U.S. Equal Employment Opportunity Commission (EEOC) issued Enforcement Guidance on Retaliation and Related Issues. The guidance addresses retaliation under each statute enforced by the EEOC, including Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), Title V of the Americans with Disabilities Act (ADA), Section 501 of the Rehabilitation Act, the Equal Pay Act (EPA) and Title II of the Genetic Information Nondiscrimination Act (GINA). It also specifically addresses the "interference" provision under the Americans with Disabilities Act (ADA), which prohibits coercion, threats, or other acts that interfere with the exercise of ADA rights.

On August 29, the U.S. Equal Employment Opportunity Commission (EEOC) issued Enforcement Guidance on Retaliation and Related Issues.  The guidance addresses retaliation under each statute enforced by the EEOC, including Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), Title V of the Americans with Disabilities Act (ADA), Section 501 of the Rehabilitation Act, the Equal Pay Act (EPA) and Title II of the Genetic Information Nondiscrimination Act (GINA).  It also specifically addresses the "interference" provision under the Americans with Disabilities Act (ADA), which prohibits coercion, threats, or other acts that interfere with the exercise of ADA rights. 

Topics explained in the new guidance include:

  • The scope of employee activity protected by the law;
  • Legal analysis to be used to determine if evidence supports a claim of retaliation;
  • Remedies available for retaliation;
  • Rules against interference with the exercise of rights under the ADA; and
  • Detailed examples of employer actions that may constitute retaliation.

The EEOC also issued two resource documents to accompany the guidance: a question-and-answer document that summarizes the guidance, and a Small Business Fact Sheet.

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


AGC Tells OMB that Proposed EEO-1 Report is Overly Burdensome for Construction Employers

On August 15, AGC submitted a second set of comments to the Office of Management and Budget (OMB) opposing the Equal Employment Opportunity Commission’s (EEOC) proposed rule 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. AGC submitted comments on the rule, as initially proposed, in April. A final rule is expected in the Fall.

On August 15, AGC submitted a second set of comments to the Office of Management and Budget (OMB) opposing the Equal Employment Opportunity Commission’s (EEOC) proposed rule 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. AGC submitted comments on the rule, as initially proposed, in April. A final rule is expected in the Fall.

The proposal to revise the report references wage discrimination as the basis for the need to collect compensation data from employers. In both comment letters, AGC explains to the EEOC and OMB that the collection of wage data is not necessary. Specifically, both the EEOC’s and the Office of Federal Contract Compliance Program’s (OFCCP) data show that there is no need for the eradication of wage discrimination in construction because there is scant evidence that such discrimination exists. Additionally, AGC addresses 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.

While AGC’s comments stress that this data collection is 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. Allow the use of W-2 data to make reporting easier for employers
  3. Change the EEO-1 reporting date to allow for post-annual reporting
  4. Clearly define “contractor” on the revised EEO-1 form
  5. Take all measures to ensure confidentiality prior to the release of a revised EEO-1 report

In its final proposed rule submitted to OMB, the EEOC did accept AGC’s recommendation to use W-2 data and change the reporting date from September 30, to a post-annual reporting date of March 31. However, the agency proposes to use Box 1 data on the W-2 form instead of Box 5 data, which more accurately reflects an employee’s total earnings. As a result, AGC recommended the use of Box 5 data for the collection of compensation data, should the data be unnecessarily required.

The EEOC also proposed to change the workforce “snapshot” period during which employers much identify the workforce that must be included on the EEO-1 report from the third quarter to the fourth quarter in order to coincide with the new reporting date. If a snapshot period must be used, since construction work typically peaks during Summer and Fall, AGC recommended a snapshot period during those months for construction employers.

Regarding the collection of hours-worked data, the original proposal did not provide an example of what the collection of information would look like on the revised form. Therefore, AGC asked the EEOC to withdraw consideration of this requirement until it can provide an example that can be evaluated by employers for public comment. While the EEOC did not withdraw consideration for reporting hours-worked data, the agency did explain how the data should be collected and reported by employers. A survey of AGC members reflected that 88% of respondents were concerned that reporting hours-worked data by the EEOC’s recommended “pay-bands” would be burdensome, with nearly 40% stating it would be extremely burdensome – particularly for tracking the hours-worked by non-exempt employees due to the unique transitory and often seasonal nature of the construction industry.

If implemented, the revised report would be required by 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.

AGC will continue to monitor the developments of the proposal and will keep members informed.


Compliance with OFCCP's Veterans and Disabilities Rules Requires Special Consideration from Construction Contractors

A common misunderstanding among federal construction contractors is that they never have to prepare written affirmative action plans (AAPs). They often base this on their not having to prepare written AAPs for minorities and women under Executive Order 11246. Unlike supply and service contractors, construction contractors do not prepare written AAPs for women and minorities. The Office of Federal Contract Compliance Programs' (OFCCP) regulations concerning written AAPs for protected veterans and individuals with disabilities apply to most construction contractors the same as non-construction contractors, however. This article will highlight protected veterans and individuals with disabilities obligations that covered construction contractors commonly overlook.

A common misunderstanding among federal construction contractors is that they never have to prepare written affirmative action plans (AAPs). They often base this on their not having to prepare written AAPs for minorities and women under Executive Order 11246. Unlike supply and service contractors, construction contractors do not prepare written AAPs for women and minorities. The Office of Federal Contract Compliance Programs' (OFCCP) regulations concerning written AAPs for protected veterans and individuals with disabilities apply to most construction contractors the same as non-construction contractors, however. This article will highlight protected veterans and individuals with disabilities obligations that covered construction contractors commonly overlook. 

An important first point relates to the difference between a construction contract and a federally assisted construction contract. The obligations toward protected veterans or individuals with disabilities that OFCCP enforces do not apply to federally assisted contracts. Both types of contracts involve construction, rehabilitation, demolition or repair of buildings, highways, or other changes to federal land and buildings. With a federally assisted construction contract, however, the federal government is not a direct party to the contract. Instead, the federal government provides funds for the contract through a federal program. For example, the federal Department of Transportation often funds local highway construction or repair, but funnels the money through a state agency, which handles the construction bidding process and contract administration. 

It is important that construction contractors know the types of contracts they are bidding on and winning. If a contractor is providing construction services on a contract in which a federal agency is not one of the contracting parties but the source of funds, then the contract is a federally assisted contract. The contractor must comply with OFCCP's requirements in relation to protected veterans and individuals with disabilities if it meets the coverage thresholds. This conclusion is the same if the contractor is the prime contractor or a subcontractor. 

Under Section 503 of the Rehabilitation Act, a construction contractor must comply with the written AAP requirements for individuals with disabilities if it has a federal construction contract or subcontract valued at $50,000 or more and has at least 50 employees. The requirements are the same for protected veterans under the Vietnam Era Veterans Readjustment Assistance Act of 1974, as amended, except that the contract or subcontract must be $150,000 or more. If there is no single covered contract for each of these thresholds, a construction contractor does not need to prepare a written AAP for protected veterans or individuals with disabilities. 

Once a contractor is covered, it must assess its overall utilization of employees who are individuals with disabilities against the 7% incumbency goal established by OFCCP. It also must assess its hiring of protected veterans against the 6.9% hiring benchmark set by OFCCP effective March 4, 2016. These mandatory quantitative assessments went into effect on March 24, 2014. (OFCCP regularly updates the protected veterans' hiring benchmark.) 

To perform these assessments, contractors must ask applicants and new hires to self-identify so contractors have the needed information. OFCCP issued mandatory language for the disability self-identification questions and suggested language for the protected veteran self-identification questions. Construction contractors need to confirm they are requesting self-identification information from applicants and new hires, their questions comply with OFCCP's current regulations, and they are analyzing results against OFCCP's mandatory metrics.

In addition, each year, a covered contractor must review its outreach and recruitment efforts to evaluate its effectiveness in identifying and recruiting qualified individuals with disabilities and protected veterans. The contractor must document each evaluation, which must provide the criteria to evaluate effectiveness, and the contractor's conclusion. OFCCP states that a contractor's conclusion must be reasonable. If a contractor concludes its efforts were not effective in identifying and recruiting qualified individuals with disabilities and protected veterans, it must identify and implement alternative efforts. 

Covered contractors also must compute the number of applicants who self-identify as disabled or a protected veteran, the total number of job openings and total number of jobs filled, the total number of applicants for all jobs, the number of disabled and protected veteran applicants hired, and the total number of applicants hired. Contractors must retain these computations on applicants and hires for three years. OFCCP reviews these records in an audit. 

Through these regulations, OFCCP is requiring contractors to implement outreach and recruitment efforts that measurably increase the numbers of applicants and employees who identify as protected veterans or as individuals with disabilities or appear likely to do so. In an audit, OFCCP reviews a construction contractor's annual assessment. Construction contractors have the best chance of increasing their recruitment numbers of protected veterans and individuals with disabilities if they do so in the ordinary course of business and not in response to an audit notice. 

Construction contractors should assess their contracts to determine whether they have to comply with OFCCP's requirements for individuals with disabilities and protected veterans. If so, contractors' affirmative action compliance for individuals with disabilities and protected veterans should begin with the items mentioned above. There is much more for them to do, but this starts them in the right direction. 

Editor’s Note:  This article was written by guest author Pamela Ploor, Esq.  Since 1993, Ploor has advised federal contractors on their affirmative action obligations, represented federal contractors during audits by OFCCP, and supervised the preparation of written AAPs. Ploor chairs the OFCCP/Affirmative Action Team at the law firm of Quarles & Brady. 

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.

For more information, tools and resources for complying with OFCCP’s affirmative action requirements for federal and federally-assisted construction contractors, visit AGC’s Labor and HR Topical Resources webpage.  The primary category is “EEO”.  The secondary category is “Affirmative Action/EEO.”


Construction HR & Training Professionals Gear Up for Industry 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”, “Understanding Federal Affirmative Action and Equal Employment Obligations (for Employers with both a Construction and Non-Construction Workforce AND for those who are unsure)”, and an OFCCP Regulatory Wrap-Up that will include coverage of the recently released Fair Pay and Safe Workplaces rule (a.k.a., Blacklisting rule).

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”, “Using Key Results Area Job Descriptions 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 playing 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 those seeking to earn professional credentials at the event, Conference attendees who hold a PHR, SPHR or GPHR certification and attend the entire conference and workshop will earn 13.25 general recertification credits through the HR Certification Institute.  Sessions may also qualify for SHRM-CP and SHRM-SCP recertification.   

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


NLRB Rules Temps & Other Supplied Workers may be Organized in Same Unit as Regular Workers

The National Labor Relations Board (NLRB or Board) has changed the standard – yet again – for determining the appropriateness of bargaining units in the context of labor staffing firms.  In Miller & Anderson, the Board held that a union may seek to represent a unit of workers that combines employees who are jointly employed by the “supplier” employer (the staffing company) and the “user” employer with employees who are solely employed by the user employer, provided that the workers share a “community of interest.”  The Board’s most recent standard conditioned such a unit on the joint employers’ consent, but the Board has flip-flopped on this standard over the years.  The present decision reinstates the standard set forth in the 2000 Sturgis decision, which was reversed in the 2004 Oakwood decision.  It arguably makes it easier for unions to organize supplied workers, particularly as it comes in the wake of last year’s Browning-Ferris Industries decision relaxing the standard for determining joint employer status.

The National Labor Relations Board (NLRB or Board) has changed the standard – yet again – for determining the appropriateness of bargaining units in the context of labor staffing firms. In Miller & Anderson, the Board held that a union may seek to represent a unit of workers that combines employees who are jointly employed by the “supplier” employer (the staffing company) and the “user” employer with employees who are solely employed by the user employer, provided that the workers share a “community of interest.” The Board’s most recent standard conditioned such a unit on the joint employers’ consent, but the Board has flip-flopped on this standard over the years. The present decision reinstates the standard set forth in the 2000 Sturgis decision, which was reversed in the 2004 Oakwood decision. It arguably makes it easier for unions to organize supplied workers, particularly as it comes in the wake of last year’s Browning-Ferris Industries decision relaxing the standard for determining joint employer status.

The case arose in the construction industry. Sheet Metal Workers Local 19 filed a petition to represent a unit of all sheet metal workers working for Miller & Anderson on all jobsites in Franklin County, PA, including those employees employed directly by Miller & Anderson and those supplied by Tradesmen International.  Miller & Anderson’s status as a joint employer of the supplied workers was undisputed.  An NLRB regional director dismissed the petition because the Oakwood standards were not met.  The Board in Oakwood viewed such combined units as multiemployer units, which are appropriate only with the consent of the parties, and such consent was lacking here.  Local 19 asked the Board to review the dismissal of its petition and to overturn Oakwood.  AGC, through its membership in the Coalition for a Democratic Workplace, filed an amicus brief arguing against overturning Oakwood and returning toSturgis.

The Board agreed with the union, finding that returning to the Sturgis standard is more consistent with its statutory charge “to afford employees ‘the fullest freedom’ in exercising their right to bargain collectively.”  The Board also found that the Oakwood standard was inappropriate because the Sturgis (and present) context is substantively different from the traditional multiemployer bargaining situation.  While both situations involve multiple employers, the Sturgis situation is not “multi-employer” bargaining because all the employees in the unit perform work for the user employer and are employed, either solely or jointly, by the user employer.  In a multi-employer unit, there is no common user employer of all employees.  Finally, the Board clarified that its ruling does not mean that every combination unit sought by a union will necessarily be found appropriate.  The Board will use its traditional “community of interest” test to evaluate the appropriateness of the petitioned-for unit in each case.  That test examines various factors to determine whether the employees share mutual interests in wages, hours, and other conditions of employment.

Contractors that use outside staffing firms may want to review their contractual arrangements with such firms and their actual practices related to supplied workers to assess the risk of joint employer and community-of-interest findings.  More information and guidance on the significance of the Sturgis standard are found in the Labor & HR Topical Resources of AGC’s website.  Once logged in as an AGC member, go to www.agc.org/topicalresources and select the main category “Other Legal Issues” and the subcategory “Temporary & Leased Employees.”  For additional information and guidance on the new joint employer standard, select the main category “Unions/NLRA” and the subcategory “Joint Employers.”


NLRB Allows Carpenters to Proceed with Multiemployer-Based Election in NYC

The National Labor Relations Board (NLRB or Board) approved a union’s petition for a single representation election covering all of the contractors in a multiemployer group because the contractors indicated their “unequivocal intent” to be bound by group bargaining. The case, Building Contractors Association, involves interesting issues about conversion from 8(f) to 9(a) relationships in the construction industry.[1]

The National Labor Relations Board (NLRB or Board) approved a union’s petition for a single representation election covering all of the contractors in a multiemployer group because the contractors indicated their “unequivocal intent” to be bound by group bargaining.  The case, Building Contractors Association, involves interesting issues about conversion from 8(f) to 9(a) relationships in the construction industry.[1]

The Carpenters’ District Council of New York City and Vicinity and the Building Contractors Association, the parties involved, had a 30-year history of bargaining together and were signatory to an 8(f) agreement when the case arose.  In collective bargaining negotiations, the union proposed language that would convert the 8(f) relationship to a 9(a) relationship, but the parties could not come to agreement on the matter.  The association at one point offered to accept the proposed conversion language but only if the union agreed to all of the association’s other proposals, which the union refused to do.  Instead, the union filed a petition with the NLRB to represent the carpenters working for all 145 contractors that had delegated bargaining authority to the association and were signatory to the 8(f) agreement.  An NLRB regional director found the multiemployer unit appropriate and issued a direction of election.  The association sought review by the Board.  The Board upheld the regional director’s decision. 

According to the Board, the critical question “is whether the members of the Association have clearly indicated their intent to engage in multiemployer bargaining with the Petitioner—whether on an 8(f) or 9(a) basis.”  Indeed, the Board found, the association’s membership documents demonstrated that the member contractors authorized the association to bargain on their behalf regardless of whether that bargaining was on an 8(f) or 9(a) basis.  The Board noted that the association in 2012 sent to all its members a notice of amendments to its membership agreement that included an explanation of differences between 8(f) and 9(a) bargaining relationships and of the union’s right to seek conversion to 9(a) status through a showing of majority status at any time.  The Board also noted that the association did not require consent from its members as a condition of conversion and that the membership agreement’s references to delegation of bargaining authority do not distinguish between 8(f) and 9(a) agreements.  In addition, the association already had 9(a) agreements with certain other unions, to which some of the contractors involved here  were signatory. 

NLRB Member Miscimarra wrote a dissent with several strong arguments against affirming the regional director’s decision.  He agreed that the contractors indicated their intent to engage in multiemployer bargaining but only on an 8(f) basis.  He also pointed out that the results of a single election of all the contractors’ carpenters together would not reflect whether the union has majority support among the employees of any individual contractor.  The regional director took a different position, asserting that this is true of all multiemployer elections, yet elections in multiemployer units have a long history of being appropriate.  “Further, such a result is not significant to the current situation because of the nature of the construction industry, where there is no stable work force among the employers and employees often work for multiple employers a year,” he said.

Member Miscimarra also disagreed with the Board’s holding that the regional director appropriately included in the election 16 contractors who currently do not employ any carpenters.  The Board found the inclusion consistent with the agency’s long-standing recognition that employee complements of construction employers fluctuate.  “Those 16 member-employers designated the Association to bargain on their behalf with the Petitioner, and there is no indication that any of them attempted to withdraw from the 8(f) agreement despite their nonemployment of unit carpenters.  As the Regional Director noted, there is no indication that any of the 16 member-employers have permanently ceased carpentry work or will not accept such work in the future.”

Member Miscimarra further disagreed with the Board’s affirmance of the regional director’s inclusion of Carpenter-Foreman and Carpenter-General Foreman classifications in the bargaining unit.  The regional director concluded that the association failed to meet its burden of proving that the employees in those classifications are qualify as supervisors under the National Labor Relations Act and, therefore, ineligible to vote.  Member Miscimarra stated that he would grant review to further consider the foremen’s supervisory status given language in the parties’ 8(f) agreement indicating that the foremen had authority to hire and fire.

AGC chapters with 8(f) collective bargaining agreements may wish to review their membership agreements, bylaws, assignments of bargaining rights, and any other documents that contain language that, in light of this ruling, could be interpreted as conveying contractors’ intent to be bound as a multiemployer unit on either an 8(f) or a 9(a) basis.  Consultation with outside counsel is well-advised.  To find an attorney who might be helpful, consult the AGC Labor and Employment Law Council directory at https://www.agc.org/lelc-member-directory.


[1] 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.  After logging in as an AGC member, select the main category “Collective Bargaining” and subcategory “Collective Bargaining Agreements:  8(f) vs. 9(a).”


Court Puts Temporary Hold on AGC-Opposed Persuader Rule and Signals High Potential for Permanent Block

A federal court on June 26 issued a nationwide preliminary injunction preventing the U.S. Department of Labor's (DOL) final "persuader" rule from taking effect as scheduled on July 1. Although the injunction is only temporary, the ruling is a significant victory for employers and for the associations, attorneys, and consultants that advise them.

A federal court on June 26 issued a nationwide preliminary injunction preventing the U.S. Department of Labor's (DOL) final "persuader" rule from taking effect as scheduled on July 1.  Although the injunction is only temporary, the ruling is a significant victory for employers and for the associations, attorneys, and consultants that advise them.

The “persuader” rule seeks to revise reporting obligations of labor relations “consultants” (which is defined to include attorneys and associations) who conduct activities to persuade employees about their rights to organize or bargain collectively and the reporting obligations of employers who receive assistance from such consultants.  While the regulations do not directly restrict employers from using consultants, the reporting obligation may well have a chilling effect on employers’ willingness and ability to seek needed advice from experts.  For more information on the revised regulations, click here.

In issuing the preliminary injunction, the U.S. District Court for the Northern District of Texas found that the plaintiffs demonstrated a substantial likelihood of success on the merits in their challenge to the validity of the rule and a substantial threat of irreparable harm if the rule were implemented as scheduled.  More specifically, the court found that the plaintiffs were likely to succeed in their claims that DOL lacks statutory authority to issue and enforce the rule and that the rule:  is arbitrary, capricious, and an abuse of discretion; violates First Amendment rights to free speech and association; violates the Fifth Amendment’s due process clause as overly vague; and violates the Regulatory Flexibility Act.

The case is one of three lawsuits challenging rule in different courts.  In a second case, the U.S. District Court for the District of Minnesota declined to issue a preliminary injunction but indicated that the plaintiffs would likely succeed on the merits.  The third lawsuit is pending in the U.S. District Court for the Eastern District of Arkansas, which has yet to issue any rulings in the matter.  AGC, as a member of the Coalition for a Democratic Workplace, is a plaintiff in that case.  AGC is also a member of the U.S. Chamber, which submitted amicus briefs in all three cases. 

The injunction issued by the court in Texas will remain in place until a decision is issued on the merits or the injunction is overturned on appeal.  DOL has not yet announced whether it will appeal the ruling.  AGC will continue to closely monitor the litigation and report on significant developments.

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


AGC Workforce Survey Shows Contractors Have a Hard Time Finding Qualified Craft Workers

Labor Shortages are Prompting Firms to Increase Pay and Become More Efficient but Threaten to Slow Economic Growth over the Long-Term Officials Warn as they Call for New Workforce Measures

Two-thirds of construction firms report they are having a hard time filling hourly craft positions that represent the bulk of the construction workforce, according to the results of a 2016 industry-wide AGC survey on workforce. The labor shortages come as demand for construction continues to grow, prompting many firms to change the way they pay and operate to cope. As a result, AGC continues its efforts to push for new workforce measures to improve the pipeline for recruiting and training new craft workers.

Two-thirds of construction firms report they are having a hard time filling hourly craft positions that represent the bulk of the construction workforce, according to the results of a 2016 industry-wide AGC survey on workforce. The labor shortages come as demand for construction continues to grow, prompting many firms to change the way they pay and operate to cope. As a result, AGC continues its efforts to push for new workforce measures to improve the pipeline for recruiting and training new craft workers.

Of the 1,459 survey respondents, 69 percent said they are having difficulty filling hourly craft positions. Craft worker shortages are the most severe in the Midwest, where 77 percent of contractors are having a hard time filling those positions.  The region is followed by the South where 74 percent of contractors are having a hard time finding craft workers, 71 percent in the West and 57 percent in the South.

Tight labor market conditions are prompting nearly half of construction firms to increase base pay rates for craft workers because of the difficulty in filling positions.  Twenty-two percent have improved employee benefits for craft workers and 20 percent report they are providing incentives and bonuses to attract workers.

Forty-eight percent of firms also report they are doing more in-house training to cope with workforce shortages while 47 percent report they are increasing overtime hours and 39 percent are increasing their use of subcontractors.  In addition, 37 percent report getting involved with career-building programs in local schools.  Twenty-one percent report they are increasing their use of labor-saving equipment, 13 percent are using offsite prefabrication and 7 percent are using virtual construction methods like Building Information Modeling.

To assist contractors with finding and training craft workers, AGC’s Workforce Development Plan calls on federal, state and local officials to outline measures to address the growing worker shortages. In particular, AGC urges Congress to reform and increase funding for the Perkins Career and Technical Education Act, enact immigration reform and make it easier to set up charter schools and career academies that teach basic construction skills.

The survey was conducted in July and August. Click here to see the national survey results, analysis of the data and regional and state-by-state results.


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