AGC's Human Resource and Labor News - May 18, 2017 /Issue No. 03-17 (Print All Articles)

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Registration Opens for 2017 Construction HR and Training Professionals Conference

Registration is now open for the 2017 Construction HR and Training Professionals Conference and pre-conference Strategic Management Workshop to be held October 11-13, 2017, in Phoenix, AZ

Registration is now open for the 2017 Construction HR and Training Professionals Conference and pre-conference Strategic Management Workshop to be held October 11-13, 2017, in Phoenix, AZ.

AGC's “HR/TED Conference” provides two days of education and networking for HR, training, and workforce development professionals in the construction industry. Educational sessions for training professionals cover the most cutting-edge techniques in training and development currently in use and envisioned for the future in the industry. The HR sessions help HR professionals in the industry remain up to date and compliant with employment laws and best practices. Some sessions interest both HR and training professionals alike.

Attendees can expect to walk away from this year's conference with practical skills and knowledge that they can begin to implement immediately. Plus, they can take away insights from colleagues who face the same challenges they face every day. The HR sessions will help HR professionals in the industry remain up to date and compliant with employment laws and best practices.  Some sessions will interest both HR and training professionals alike. Sessions for this year include “Labor & Employment Law In Year One Of The Trump Administration”, “Economy’s Impact on Construction Work”, “Drug Testing”, and “Creating Internal Subject Matter Experts.”

Back by popular demand is the Strategic Management Workshop for HR and training professionals, which will be held the afternoon of Oct. 11. This pre-conference workshop will help participants understand their firm’s top business challenges in order to align HR and training with the company’s strategic corporate goals. 

Not to be missed this year are the Conference’s four anchor sessions.  During the opening session of the conference, innovation and creativity guru Jeff Tobe, author of Coloring Outside the Lines, will kick off the conference with his session on the “Four Pillars of Engagement.”  Derrick Duplessy, the founder of the Purpose Rockstar podcast and Executive Director of the Duplessy Foundation, will close the first day of the conference with his session on self-discovery, exploring how attendees can maximize their potential as humans. On the final day of the conference, Randy Nemchin of FMI will unveil and moderate a panel discussion on the results of their 2017 Talent Development survey of leading construction firms. And to close out the conference, Seniye Groff & Tim Sissel from Fortis Construction will discuss building an on boarding program from the ground up. This session will be informative for anyone trying to identify performance gaps and devise an organizational solution that uses process and training solutions to the table.

General and specialty contractor staff, AGC chapter staff, and other professionals involved in workforce and professional development, education, human resources and training are invited to attend. Attendees will also earn HRCI credits.

CLICK HERE TO REGISTER

For more information, contact Claiborne Guy at 703-837-5382 or claiborne.guy@agc.org.


Construction Labor Lawyers and Managers Sharpen Skills at Annual Symposium

The AGC Labor and Employment Law Council (LELC) held its 33rd Annual Construction Labor Law Symposium May 12, 2017, in Washington, DC. Attorneys and chapter labor relations managers from across the country gathered to learn about labor and employment law developments and their significance for construction employers.

The AGC Labor and Employment Law Council (LELC) held its 33rd Annual Construction Labor Law Symposium May 12, 2017, in Washington, DC.  Attorneys and chapter labor relations managers from across the country gathered to learn about labor and employment law developments and their significance for construction employers.

The program featured presentations by LELC members on:

  • The constitutionality of local hiring preferences;
  • A primer on multiemployer collective bargaining in the construction industry;
  • The mandates of the new federal contractor paid sick leave rule;
  • Increasing criminal prosecution for labor law violations;
  • Multiemployer pension successor liability and how to prepare for audits; and
  • Bargaining to impasse over subcontracting clauses and related withdrawal liability issues.

Guest speakers included Barry Kearney, associate general counsel for the National Labor Relations Board’s Division of Advice, and Jim Plunkett, senior government relations counsel for Ogletree Deakins. Ed Gilroy, director of workforce policy for the House Committee on Education and the Workforce, served as the keynote lunch speaker.  Each shared keen insight into the changes that have occurred and are anticipated in the new Administration and Congress. 

    
             Ed Gilroy, House Committee on Education and the Workforce


Barry Kearney, National Labor Relations Board


Handouts from the presentations are posted in the Labor & HR Topical Resources area of AGC’s website.  AGC-member login is required 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.  It conducts the 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 LELC members.  For a searchable directory of LELC members, click here.  For information about LELC membership, click here.

For more information, contact Denise Gold, associate general counsel, at goldd@agc.org or (703) 837-5326.


“Blacklisting” Rule Finally Dies, Marking Big Win for AGC Members

Thanks in part to AGC’s advocacy efforts, contractors are enjoying a major victory today: permanent nullification of regulations implementing Pres. Obama’s Fair Pay and Safe Workplaces Executive Order, often referred to as the “blacklisting” rule. On March 27, Pres. Trump signed into law a joint resolution under the Congressional Review Act (CRA) by which Congress expressed disapproval of the rule and stripped it of all force and effect.

Thanks in part to AGC’s advocacy efforts, contractors are enjoying a major victory today:  permanent nullification of regulations implementing Pres. Obama’s Fair Pay and Safe Workplaces Executive Order, often referred to as the “blacklisting” rule.  On March 27, Pres. Trump signed into law a joint resolution under the Congressional Review Act (CRA) by which Congress expressed disapproval of the rule and stripped it of all force and effect.

Under the blacklisting rule, both prime and subcontractors were required to report violations and alleged violations of 14 federal labor laws and “equivalent” state labor laws during the previous three years, and again every six months, on federal contracts over $500,000.  Prime contractors were also responsible for evaluating the labor law violations of subcontractors at all tiers.  A single alleged violation could have led a contracting officer to remove a contractor from an ongoing project or to deny to a contractor the right to compete for a contract.  The rule also required contractors to provide certain pay information to employees and independent contractors, and it limited the use of mandatory arbitration of employment disputes.  All but the paycheck transparency provisions had been on temporary hold since a federal court issued preliminary injunction in October 2016.

“To be clear, there should be no place in federal contracting for unsafe or unscrupulous firms.  Yet the former President’s measure did nothing to reform or improve the existing suspension and debarment process,” said AGC Chief Executive Officer Steve Sandherr.  “Instead, it created a new layer of bureaucracy that would have given federal officials broad discretion to punish construction firms based on any number of unsubstantiated allegations without establishing a process for those firms to defend themselves.  That is why the Associated General Contractors worked so aggressively to push for passage of today’s repeal measure.”

The CRA enables Congress to invalidate recently-issued federal agency regulations under certain circumstances.  Once Congress passes a joint resolution under the CRA and the President signs it into law, federal agencies may not issue the same or a substantially similar regulation absent authorization from Congress.  Accordingly, Congress’s and the President’s use of the CRA to “kill” the blacklisting rule is considered a better outcome than the President simply withdrawing the executive order and regulations.  Enactment of the present resolution also renders continued litigation over the rule moot.

Unwinding the paycheck transparency requirements that were already in effect at the time the President signed the resolution may take time, and some federal contracting officers may not be aware of this development.  Contractors responding to a request for proposal that includes FAR 52.22-60, Paycheck Transparency (Executive Order 13673), should ask the contracting officer to remove the provision in light of this development.  Contractors already performing work on a contract that incorporates FAR 52.222-60 should consider evaluating the burden of continued compliance, and, if significant, ask the contracting officer to remove the clause by modification. 

For more information, contact Jimmy Christianson at 703-837-5325 or christiansonj@agc.org or Denise Gold at 703-837-5326 or goldd@agc.org.


OFCCP Sets 2017 VEVRAA Hiring Benchmark at 6.7 Percent

The Office of Federal Contract Compliance Programs (OFCCP) recently announced that the 2017 annual Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) hiring benchmark is 6.9 percent. The new benchmark is a slight decrease from last year’s 6.9 percent benchmark and became effective on March 31.  It reflects the national percentage of veterans in the civilian labor force for 2017 as determined by the Bureau of Labor Statistics.

The Office of Federal Contract Compliance Programs (OFCCP) recently announced that the 2017 annual Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) hiring benchmark is 6.9 percent. The new benchmark is a slight decrease from last year’s 6.9 percent benchmark and became effective on March 31.  It reflects the national percentage of veterans in the civilian labor force for 2017 as determined by the Bureau of Labor Statistics.

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 each year.  Employers responsible for complying with the regulations by having a written affirmative action plan should use the new 6.7 percent benchmark or an independently derived benchmark as outlined in the regulations. The benchmark is subject to change annually and is 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 AGC’s Labor & HR Topical Resources library.  The primary category is “EEO” and the secondary category is “Affirmative Action/EEO.”  AGC-member log-in is required to view all available resources.


Alex Acosta Becomes Secretary of Labor; AGC Requests an Audience

On April 28, 2017, Rene Alexander “Alex” Acosta was sworn in as the nation’s 27th U.S. Secretary of Labor. The Senate confirmed him the day before by a bipartisan final vote of 60-38. Eight Democrats and one independent joined the Republicans voting in favor of the appointment.

On April 28, 2017, Rene Alexander “Alex” Acosta was sworn in as the nation’s 27th U.S. Secretary of Labor. The Senate confirmed him the day before by a bipartisan final vote of 60-38. Eight Democrats and one independent joined the Republicans voting in favor of the appointment.

Secretary Acosta has much work ahead of him in the Department of Labor (DOL) itself. He must address the administration's 21% proposed cuts to the 17,000-employee department, as well as nominating or appointing critical top staff members. As of today, no one has been nominated to lead the Wage & Hour Division, the Occupational Safety and Health Administration, or the Office of Federal Contract Compliance Programs. The new secretary must also carry out several Obama-era policies and new White House directives for all departments to identify burdensome or unnecessary.

Acosta served as Assistant Attorney General for the U.S. Justice Department's Civil Rights Division under President George W. Bush, between August 2003 and June 2005. Acosta was also a member of the National Labor Relations Board (NLRB) signing more than 125 opinions, per his biography. Since 2009, Acosta has worked as the dean of the Florida International University College of Law in Miami.

Before his work in the Bush administration, Acosta served as the U.S. Attorney for the Southern District of Florida and was that district's longest serving U.S. Attorney since the 1970s. He has earned several awards for business ethics and presently also serves on the Federal Judicial Nominating Commission of Florida. He is a graduate of Harvard Law School and Harvard College after which he clerked for Justice Samuel Alito when he was a judge on the U.S. Court of Appeals for the Third Circuit.

AGC congratulated Secretary Acosta on his confirmation in a letter officially requesting an audience to discuss opportunities where AGC and DOL can partner on DOL’s mission to protect American workers while stimulating economic growth and creating new high-quality jobs.  Specifically, AGC believes that DOL can achieve these goals through regulatory reduction and streamlining, strengthening the symbiotic partnership between DOL and the construction industry, and enhancing present regulatory compliance education and collaboration initiatives. These objectives remain top priorities for AGC.  AGC looks forward to discussing how AGC and DOL can collaborate on these important efforts.

For more information, contact Claiborne Guy at 703-837-5382 or claiborne.guy@agc.org.


When Can an Employer Insist on Confidentially in an HR Investigation? DC Circuit Relaxes Standard Set by NLRB

On March 25, 2017, in Banner Health Systems v NLRB, the United States Court of Appeals for the DC Circuit refused to enforce an order of the National Labor Relations Board's (Board) finding that an employer violated Section 7 of the National Labor Relations Act (Act) by maintaining “a categorical policy of asking employees not to discuss certain kinds of human resources investigations.”

On March 25, 2017, in Banner Health Systems v NLRB, the United States Court of Appeals for the DC Circuit refused to enforce an order of the National Labor Relations Board's (Board) finding that an employer violated Section 7 of the National Labor Relations Act (Act) by maintaining “a categorical policy of asking employees not to discuss certain kinds of human resources investigations.”

Banner Health received a good deal of notoriety a few years ago (click here for more info).  Many commentators said that the Board’s 2012 decision essentially killed confidentiality requirements in HR investigations since it set a nearly impossible standard for employers to meet before asking employees not to discuss an ongoing investigation.

The Board's decision established a test that the employer had to meet on a case-by-case basis in order to maintain an investigative non-disclosure policy:  the employer must prove in a particular situation that it had “legitimate and substantial business justification that outweighs the employee's Section 7 rights to prohibit employees from discussing ongoing investigations.”

The court found that there was no factual basis to support the Board's decision and refused to enforce it.  In the opinion, the court cited a more employer-friendly test:  “the employer must show, on a case-by-case basis, that confidentiality is necessary based on objectively reasonable grounds for believing that the integrity of the investigation will be compromised without confidentiality.”

In deciding the case, the court did not rely on this easier burden on the employer. Instead, it refused to enforce the decision because there was no evidence to support the Board's conclusion that the employer had a blanket or categorical confidentiality policy.

On a separate issue, the court enforced the Board's decision that the employer's policy – which stated that employees were prohibited from discussing their salary and working conditions – violates Section 7.  This holding is not significant as it is well-established law.

The DC Circuit's decision is not necessarily binding on the Board, as the Board believes that only its own decisions are precedential.  But this decision does provide some breathing space for HR investigations, and it gives HR professionals some latitude to require confidentiality in sensitive situations where there are reasonable grounds to believe that disclosure of information by interviewees could compromise the investigation.  The less restrictive test articulated by the DC Circuit may also be adopted in future cases by a newly constituted Board appointed by Pres. Trump.

Editor’s Note:  This article was written by guest authors Thomas P. Brady and Daniel J. Bretz of the law firm Clark Hill, and edited and printed by AGC with permission.  If you have questions about the case or how to proceed in this evolving area of the law, you can reach Tom Brady at (313) 965-8291, tbrady@clarkhill.com, or Dan Bretz at (313) 965-8366, dbretz@clarkhill.com.


Overtime Rule Appeal Delayed Again

The U.S. Department of Justice (DOJ) requested and was granted another delay to file a brief on behalf of the Department of Labor (DOL) in its federal court appeal on the Nov. 2016 Fair Labor Standards Act (FLSA) overtime regulation. The DOJ now has until June 30, 2017, to file its response.

The U.S. Department of Justice (DOJ) requested and was granted another delay to file a brief on behalf of the Department of Labor (DOL) in its federal court appeal on the Nov. 2016 Fair Labor Standards Act (FLSA) overtime regulation. The DOJ now has until June 30, 2017, to file its response.

This is the Trump administration’s third delay.  Previously, on Feb. 22, the U.S. Fifth Circuit Court of Appeals granted the DOJ’s second request to delay submitting its final brief for 60 days, citing a need to "allow incoming leadership personnel adequate time to consider the issues."

The additional time will allow Alex Acosta, the new U.S. Secretary of Labor, to decide the Trump administration's formal response and position on the Obama-era overtime regulation. On Jan. 25, days after the new administration took office, the government asked for and was given, an original extension of its appeal brief filing until March 2.

The regulation's implementation was halted by a Texas federal district court judge on Nov. 22. The then-Obama administration appealed the injunction shortly thereafter, but with a new Republican leader in the White House stating he does not support the rewritten overtime regulation, the rule's eventual implementation is now even more in doubt. It also leaves employers still uncertain about their work done last year to meet the original Dec. 1, 2016, compliance deadline to begin a $47,476 salary level threshold.

AGC appreciated the DOL’s attempt at modernizing the salary threshold for exempt workers under the FLSA, but urged regulators to reconsider the threshold amount and to instead implement a new lower threshold that made sense for today’s construction employers nationwide.  AGC looks forward to the opportunity to continue to engage in any further revisions to the regulation and looks forward to working with the Wage and Hour Division as it continues to amend regulations that impact construction employers.

For more AGC information on this rule, click here.

For more information, contact Claiborne Guy at 703-837-5382 or claiborne.guy@agc.org.


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