AGC's Human Resource and Labor News - March 15, 2018 / Issue No. 03-18 (Print All Articles)

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Final Chance to Submit Presentations for AGC’s 2018 Construction HR and Training Professionals Conference!

Submission Deadline Extended to Friday, March 16, 2018

AGC’s 2018 Construction HR & Training Professionals Conference and Federal Construction HR Workshop will be held October 10-12, 2018, in Fort Worth, TX. The conference will offer unique opportunities for HR, training, and workforce development professionals in the construction industry. For training professionals, the conference will offer sessions related to the most cutting-edge techniques currently in the industry and envisioned for the future in training, education and workforce development. For HR professionals, the conference will help attendees stay up to date and compliant with employment laws and best practices. Some sessions will be of interest to both HR and training professionals alike.

AGC’s 2018 Construction HR & Training Professionals Conference and Federal Construction HR Workshop will be held October 10-12, 2018, in Fort Worth, TX.  The conference will offer unique opportunities for HR, training, and workforce development professionals in the construction industry.  For training professionals, the conference will offer sessions related to the most cutting-edge techniques currently in the industry and envisioned for the future in training, education and workforce development.  For HR professionals, the conference will help attendees stay up to date and compliant with employment laws and best practices.  Some sessions will be of interest to both HR and training professionals alike.

AGC is seeking presentations from industry professionals on a variety of topics.  Details, along with a framework for proposal submissions, and other important information is available in the call for presentations.  All presentation proposals must be submitted using the provided form no later than Friday, March 16, 2018.  Selected presenters will receive a complementary registration to the conference.  Construction HR & training professionals who are currently working for AGC member-companies are encouraged to submit a proposal. 

Click here to submit your proposal!

For more information, contact Claiborne Guy at claiborne.guy@agc.org or 703-837-5382 or Carly Trout at carly.trout@agc.org or 703-837-5360.


Union Contractors Committee Hosts Two Sessions at AGC Convention and Plans Conference Calls for 2018

Brent Booker, secretary-treasurer of North America’s Building Trade Unions (NABTU), addressed attendees at a Union Contractors Committee-sponsored session during AGC of America’s Annual Convention in New Orleans, LA, on Feb. 26. He talked about NABTU’s current priorities and key activities, including the Capital Strategies program, craft training, infrastructure funding legislation, multiemployer pension plans, and owner community engagement. 

Brent Booker, secretary-treasurer of North America’s Building Trade Unions (NABTU), addressed attendees at a Union Contractors Committee-sponsored session during AGC of America’s Annual Convention in New Orleans, LA, on Feb. 26.  He talked about NABTU’s current priorities and key activities, including the Capital Strategies program, craft training, infrastructure funding legislation, multiemployer pension plans, and owner community engagement.

NABTU’s Capital Strategies program seeks to ensure that building trade pension funds are invested in a manner consistent with the trades’ long-term interests.  It is an effort to leverage the assets of such funds to benefit unions and union contractors, Booker explained.  To provide greater leverage, NABTU has developed a database that shows how much the funds have invested in particular owners’ portfolios, he said.  Booker reported that NABTU has negotiated a deal with Blackstone under which Blackstone agreed to adopt a responsible contractor policy that will establish standards for safety, health care benefits, training, and more for construction workers on Blackstone infrastructure projects.  A similar deal has been reached with Carlyle Group, he said.

Booker also spoke about the Apprenticeship Readiness programs that NABTU has begun to put in place around the country.  These pre-apprenticeship programs focus on “underserved communities,” Booker explained, quickly giving individuals the basic skills they need in a short timeframe to provide a pathway to a career in the building trades.  He described examples of such programs in Los Angeles, Chicago, and at Plant Vogtle, and how the programs vary in  features and focus.

On multiemployer pensions, Booker echoed sentiments and information expressed earlier in the meeting by Denise Gold, AGC’s associate general counsel, about the importance of composite plan legislation and about the effectiveness of NABTU and AGC’s cooperation on pension legislation advocacy.  He also advised that NABTU opposes any increase in Pension Benefit Guaranty Corporation premiums, at least as a starting point for discussion.

In response to a question from the audience, Booker spoke about NABTU’s efforts to combat the opioid crisis and to help abusers become “clean” and return to work.  He noted that NABTU recently established an Opioid Task Force that met for the first time on Jan. 3 and is currently in a fact-finding phase to collect information about the various programs already in place.  Booker extended an invitation for AGC to join the task force, which AGC promptly accepted.

The Union Contractors Committee also held an open steering committee meeting during the convention.  The meeting featured a roundtable discussion of such topics as a growing problem with project labor agreements that have regressive jurisdictional terms, the pros and cons of using professional trustees for benefit fund boards, the Operating Engineers’ new international training center and request for national training fund contributions, paid sick leave mandates, and recently adopted hybrid multiemployer pension plans.

AGC members and chapter staff interested in continuing the discussion beyond the convention can do so via the Union Contractors eForum (an email-based discussion group like a Listserv) and via quarterly conference calls.  Conference calls are scheduled for the following dates in 2018, beginning at 2:00 p.m. Eastern time:  June 7, September 13, and December 13.  Registration information will be provided via the eForum closer to the dates.


ICE Steps Up Immigration Raids

Employers Should Prepare Now to Avoid Federal Enforcement Action

Federal enforcement officials are amplifying their efforts to crack down on undocumented workers and the businesses that employ them. While most of the latest raids by Immigration and Customs Enforcement (ICE) have been concentrated in California, no business in the country is immune from this show of strength. Moreover, President Trump’s 2019 budget proposal includes a 35 percent increase in penalties for employers that hire undocumented workers, so the stakes could soon be much higher for employers. What can you do today to minimize the risk of your business being a target, and what should you do if you are visited by federal officials?

Federal enforcement officials are amplifying their efforts to crack down on undocumented workers and the businesses that employ them.  While most of the latest raids by Immigration and Customs Enforcement (ICE) have been concentrated in California, no business in the country is immune from this show of strength. Moreover, President Trump’s 2019 budget proposal includes a 35 percent increase in penalties for employers that hire undocumented workers, so the stakes could soon be much higher for employers. What can you do today to minimize the risk of your business being a target, and what should you do if you are visited by federal officials?

Background: Heat Has Been Turned Up in 2018

The new year has been a turbulent one when it comes to ICE enforcement activity. In the largest sweep this year, ICE agents visited 122 business between February 11 and February 15 with an aim of pursuing at least 400 people thought to be unauthorized to work in the United States. According to ICE, each of the 122 businesses will have their hiring records audited to determine whether they are in compliance with the law. “If the businesses are found to not be in compliance,” the agency warned, “they will face civil fines and potential criminal prosecution.”

The latest effort has targeted the Southern California area, possibly in response to a new state law that aims to create somewhat of a “sanctuary state” by imposing obligations on employers facing immigration enforcement activity at their worksites. But employers elsewhere in the country should not believe they are immune from similar activity. According to statistics released by the federal government, while ICE conducted approximately 1,300 immigration raids in the year 2017 alone, reports indicate that the agency has set a goal of at least 5,000 enforcement visits at U.S. workplaces in 2018. And given that President Trump’s budget proposal includes $570.9 million to hire 2,000 additional ICE officers and 300 special agents for ICE’s Homeland Security Investigations division, the agency could very well have the resources to carry out this aggressive posture for some time.

What You Can Do Today to Prepare: 5-Step Plan to Avoid a Similar Fate

By taking concrete steps now, you can limit you risk and do your best to avoid an invasive ICE raid altogether. Here are five steps you can take today to ensure extreme vigilance in an era of extreme vetting.

  • Ensure your I-9 compliance programs are in place, up-to-date, and followed.
  • Complete I-9 forms if any are lost or missing. All current employees hired after November 6, 1986 must have an I-9 form on file.  Use payroll records to ensure that you have all I-9 forms required for current employees or prior employees.
  • Train staff and managers on how to complete an I-9, and what actions they should take when they are made aware that an employee may not be authorized to work in the U.S.
  • Conduct regular internal I-9 audits and remedy identified errors. You should have outside counsel conduct periodic I-9 audits as well.
  • Train a rapid response raid team responsible for immediately contacting immigration counsel and employment counsel in the event of a raid. They should be trained on what do in the event of a visit from enforcement officials, as outlined below.

What to Do Should the Government Come Calling

ICE typically inspects employers’ premises in one of two ways: through an audit, or through a raid.

What to Do if You Face an ICE Audit

The most common way in which your business might end up interacting with enforcement officials is through an audit. The agency will initiate an audit through a Notice of Inspection, which asks you to produce certain I-9s for inspection within three days. In addition to I-9 forms for current and recently terminated employees, you will most likely be asked to turn over a list of current employees, quarterly wage and hour reports, payroll records, E-Verify confirmations (if the company uses the system), and related business information, including the business owner’s Social Security Number.

If you receive such a Notice, immediately contact your legal counsel. You may be able to receive a short extension for legitimate business reasons depending on the type of audit requested, and your counsel might be able to work with the government official to make the process of an inspection more efficient for all involved. Once the audit is underway, a typical compliance review consists of an investigator verifying that your I-9 forms have been properly completed. This typically includes a review of your documents to ensure that they are timely completed, they are correctly and entirely filled out, and that the associated documents establishing identity and employment eligibility are legitimate.

The I-9 form review process may take as little as two weeks or as long as a three years. Once the review is complete, ICE will inform you of the results. The best news you can hope for would be a letter indicating that you are in full compliance. If only minor violations were found, ICE may issue you a notice of technical or procedural failure indicating certain mistakes on forms, and you will have 10 business days to correct them.

If more substantive violations were found, ICE may issue you a warning notice without assessing a monetary penalty. However, if the agency determines that you have substantive violations or knowingly hired individuals not authorized to work in the United States, it may issue you a notice of intent to fine. If this occurs, your lawyer may be able to negotiate a reduction of the fine, payment plan, or request a hearing before a federal administrative law judge within 30 days.

 ICE may also issue you a notice of suspect documents regarding an employee’s authorization to work, advising you of potential penalties if you continue to employ that individual. In such a case, you will be given an opportunity to provide additional documentation to show authorization to work. Similarly, the agency may issue a notice of discrepancy indicating that work eligibility cannot be determined for a certain employee, with an opportunity for that worker to provide documentation showing employment eligibility or face termination from employment.

What to Do if You Face an ICE Raid

Alternatively, ICE may conduct an actual raid, which is significantly more disruptive. To conduct a raid, ICE first obtains a search warrant (which means the agency has demonstrated to a judicial official that it has probable cause to effectuate an unplanned visit). If ICE officials have a search warrant when they come knocking on your door, understand that they will take the position that they are entitled to immediate access to your premises and your records. There is no three-day period to gather documents, and ICE agents will not wait for your attorney to arrive before conducting a search.

If you are the target of an ICE raid, there are certain things you should keep in mind. First, stay calm and ask for a copy of the warrant. You should examine the warrant to ensure things are in order (e.g., that the warrant is signed by a judge). From there, immediately provide a copy to your attorney. Second, monitor the search to ensure the ICE agents stay within the scope of the warrant, but stay out of their way to the extent possible. You can assign a company representative to follow the agents around the premises, and record their actions, but do not interfere with their investigation or engage in any hostilities toward them.

Third, be mindful of how your actions could harm the company. You should not do anything that might constitute harboring undocumented workers, such as hiding employees, aiding in their escape from the premises, shredding documents, or providing false or misleading information. At the same time, company representatives should not give any statements to ICE agents without first speaking with legal counsel. However, be aware that you cannot instruct employees to refrain from speaking to agents if questioned, so you should let that process carry out without interference. Also, if agents want access to locked facilities, you should unlock them and cooperate as much as you can.

Fourth, you should track what and who is seized by ICE, providing your list to your legal counsel once the enforcement action has ended. Finally, you should prepare to address the media during and after a raid. Work with your legal counsel to determine the best way to accomplish this task and whether it is necessary to do so.

Conclusion

The time to prepare is now. Crossing your fingers and hoping that you will not be swept in these latest enforcement actions is not advisable in today’s climate. You owe it to your business to take effective steps now to prepare for a possible visit from an ICE enforcement official.

Editor’s Note:  This article was written by Shanon Stevenson, a partner in the law firm Fisher Phillips and co-chair of the firm's Global Immigration Practice Group.  The article is not intended to be, and should not be construed as, legal advice for any particular fact situation.  Additional information about immigration laws is also available in AGC’s Labor & HR Topical Resources library under the main category “Other Legal Issues” and subcategory “Immigration & Employment Eligibility.”  You must be logged in as an AGC member to access all resources.


NLRB Vacates Hy-Brand and Revises AGC-Opposed Browning-Ferris Standard for Joint Employer Status

The saga of the joint employer standard under the National Labor Relations Act continues. It began when the National Labor Relations Board (NLRB or Board) under the Obama Administration established a broader standard for determining joint employer status in the controversial Browning-Ferris Industries case in 2015. Under the new standard, joint employer status may exist even when a company merely exercises indirect control over, or has simply reserved the right to control, essential employment terms of another company’s employees

The saga of the joint employer standard under the National Labor Relations Act continues.  It began when the National Labor Relations Board (NLRB or Board) under the Obama Administration established a broader standard for determining joint employer status in the controversial Browning-Ferris Industries case in 2015.  Under the new standard, joint employer status may exist even when a company merely exercises indirect control over, or has simply reserved the right to control, essential employment terms of another company’s employees.   While the case was on appeal pending decision in the U.S. Court of Appeals for the District of Columbia Circuit (AGC submitted an amicus brief supporting the appeal with other associations), the Board reversed the Browning-Ferris decision in a separate case called Hy-Brand Industrial Contractors.  The decision was issued in December 2017 during a brief period of time when the Board had a full complement of five members and a Republican majority, following Pres. Trump’s appointment of Republicans William Emanuel and Marvin Kaplan and prior to the expiration of Republican Philip Miscimarra’s term.  The DC Circuit promptly remanded the Browning-Ferris case back to the Board for reconsideration in light of the Hy-Brand ruling. 

However, on February 9, 2018, the NLRB’s inspector general issued a report finding that Emanuel should have recused himself from the Hy-Brand deliberations because his law firm represented one of the amicus parties in Browning-Ferris and “the Hy-Brand deliberation was a continuation of the Browning-Ferris deliberative proceedings.”  Referencing that report in a February 26 ruling, a three-member panel of the Board consisting of all sitting members other than Emanuel decided to vacate the Hy-Brand decision.  This re-instituted the Browning-Ferris standard and left the appeal in an uncertain state.  On March 1, the NLRB’s deputy associate general counsel filed a motion asking the DC Circuit to recall its decision to remand the case.  And, on March 9, Hy-Brand filed a scathing motion with the NLRB seeking reconsideration of the order to vacate.  The motion alleges a variety of deficiencies and improprieties of the inspector general’s report and the panel decision to vacate, including breaches of confidentiality, political motivations, unlawful delegation of authority, and a lack of legal support.  In addition to a request for reinstatement of the December 2017 ruling, the motion seeks investigation into the alleged Board member and inspector general misconduct.

Meanwhile, legislation to invalidate the Browning-Ferris standard and codify a standard requiring direct and immediate control is making its way through Congress.  The Save Local Business Act, an AGC-supported bill that passed the House in November 2017, could be included in an omnibus appropriations bill for the Senate to take up soon.  The Save Local Business Act would also codify the joint employer standard under the Fair Labor Standards Act.

AGC will continue to monitor these cases and legislation and to inform members of significant developments.

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


AGC Supports Expansion of Small Business Health Plan Options; Urges DOL to Protect Chapter-Sponsored Health Plans

On March 6, AGC submitted comments to the U. S. Department of Labor’s (DOL) Employee Benefits Security Administration (EBSA) in response to a proposed rule intended to expand association health plans (AHPs) and increase flexibility for small employers to join groups or associations to offer insured health coverage in the large group market at potentially more favorable pricing with less restrictive requirements.

On March 6, AGC submitted comments to the U. S. Department of Labor’s (DOL) Employee Benefits Security Administration (EBSA) in response to a proposed rule intended to expand association health plans (AHPs) and increase flexibility for small employers to join groups or associations to offer insured health coverage in the large group market at potentially more favorable pricing with less restrictive requirements. A number of AGC Chapters across the country currently recognize the need to offer alternative health care options and have established AHPs that offer “group health plan” coverage to employees of members.  AGC is supportive of the flexibility and opportunity the DOL proposes to provide, but is also concerned of negative impacts the changes might have on current Chapter-sponsored health plans and others who might be interested in sponsoring health plans.

AGC’s comment letter urges the DOL to be mindful of Chapter plans, especially those that currently exist today, and take the necessary steps to ensure that the proposed modifications to current law do not arbitrarily disrupt the affordable and quality health coverage that these arrangements consistently provide.  Specifically, AGC warns that adding certain nondiscrimination protections applicable to AHPs as proposed would critically threaten the solvency of existing Chapter plans and discourage others from even considering establishing an AHP.  AGC also advises the DOL to further investigate exempting AHPs from varying state regulations if they first meet a set federal standard.  AGC will continue to provide input to the DOL on the impact further changes might have on Chapter-sponsored health plans and will notify chapters and members of any developments. 

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


DOL Launches Pilot Wage Violation Self-Reporting Program

On March 6, the U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD) announced a new nationwide pilot program, the Payroll Audit Independent Determination (PAID) program, which intends to facilitate the resolution of potential overtime and minimum wage violations under the Fair Labor Standards Act (FLSA). According to WHD, the program's primary objectives are to resolve such claims expeditiously and without litigation, to improve employers' compliance with overtime and minimum wage obligations, and to ensure that more employees receive the back wages they are owed—faster.

On March 6, the U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD) announced a new nationwide pilot program, the Payroll Audit Independent Determination (PAID) program, which intends to facilitate the resolution of potential overtime and minimum wage violations under the Fair Labor Standards Act (FLSA). According to WHD, the program's primary objectives are to resolve such claims expeditiously and without litigation, to improve employers' compliance with overtime and minimum wage obligations, and to ensure that more employees receive the back wages they are owed—faster.

Under the pilot program, employers will be encouraged to audit their practices, flag any minimum wage or overtime violations they find, and report them to WHD. Employers will then work with WHD to correct their errors and ensure workers are paid as quickly as possible. However, employers are not allowed to participate if they are repeat offenders, in litigation, or currently under investigation for wage and hour violations.

WHD will implement this pilot program nationwide for approximately six months. At the end of the pilot period, WHD will evaluate the effectiveness of the pilot program, as well as potential modifications to the program, to determine its next steps. More information and Q&A’s on the program can be found here.

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


OFCCP Issues Directive on Predetermination Notices Providing Transparency to Federal Contractors

As part of its ongoing efforts to increase transparency of preliminary findings with federal contractors, achieve consistency across regional and district offices, and encourage communication throughout the compliance evaluation process, the Office of Federal Contract Compliance Programs (OFCCP) has issued Directive 2018-01 standardizing the use of Predetermination Notices (PDN). A PDN is a letter that OFCCP uses to inform federal contractors and subcontractors of the agency’s preliminary findings of employment discrimination. In recent years, OFCCP has typically reserved use of the PDN for systemic discrimination cases and permitted regional and district offices discretion in whether to issue the PDN prior to issuing a Notice of Violation (NOV). The intent of Directive 2018-01 is to provide a uniform protocol for OFCCP staff to follow across all of its regions for using PDNs in both individual and systemic discrimination cases.

As part of its ongoing efforts to increase transparency of preliminary findings with federal contractors, achieve consistency across regional and district offices, and encourage communication throughout the compliance evaluation process, the Office of Federal Contract Compliance Programs (OFCCP) has issued Directive 2018-01 standardizing the use of Predetermination Notices (PDN).  A PDN is a letter that OFCCP uses to inform federal contractors and subcontractors of the agency’s preliminary findings of employment discrimination.  In recent years, OFCCP has typically reserved use of the PDN for systemic discrimination cases and permitted regional and district offices discretion in whether to issue the PDN prior to issuing a Notice of Violation (NOV).  The intent of Directive 2018-01 is to provide a uniform protocol for OFCCP staff to follow across all of its regions for using PDNs in both individual and systemic discrimination cases.

OFCCP compliance officers and other responsible staff must now issue PDNs at the conclusion of compliance evaluations where contractors have not provided adequate explanations to proposed discrimination findings.  The PDN, in the form of a letter from OFCCP to a contractor, provides the contractor 15 additional calendar days to rebut OFCCP’s proposed findings that sufficient evidence exists of discrimination.  OFCCP also orders that any NOV not yet issued must be held and a PDN issued in its place to allow contractors an opportunity to respond to the agency’s preliminary findings.

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


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