What’s old is new again at the Equal Employment Opportunity Commission (EEOC) as numerous district offices have recently expanded their use of fact-finding conferences. Fact-finding conferences are part of the EEOC’s expansive statutory investigation toolkit, but they are one of the lesser-known and perhaps lesser-used tools. The EEOC is authorized by federal law to utilize fact-finding conferences and may specifically require both parties to participate in order to define, resolve, and potentially settle any issues.

On January 8, AGC of America submitted comments on the National Labor Relations Board’s latest proposed rule to modify union representation-case procedures. Not to be confused with the Board’s “quickie election” rule, which addresses different representation-case procedures, the present rulemaking proposes three changes: (1) replacing the Board’s current “blocking charge” policy with a vote-and-impound procedure that would allow representation elections to move forward while an unfair labor practice charge is pending; (2) modifying the current “voluntary recognition bar” policy by re-establishing a notice requirement and a 45-day open period within which to file an election petition following an employer’s voluntary recognition of a union under Section 9(a) of the National Labor Relations Act (“NLRA”); and – most relevant to AGC members – (3) preventing the establishment of a Section 9(a) bargaining relationship in the construction industry based on contract language alone.

The U.S. Department of Labor’s (DOL) Office of Federal Contract Compliance Programs (OFCCP) recently published the updated Federal Contract Compliance Manual (FCCM). The Manual provides guidance for OFCCP's compliance officers in conducting compliance evaluations and complaint investigations and provides federal contractors with compliance assistance.

On Dec. 19, the Senate passed many non-funding AGC-backed measures as part of the agreement reached to fund the federal government through the remainder of fiscal year (FY) 2020. This measure is expected to become law, pending the President’s signature. This legislation extends authorization for the Terrorism Risk Insurance Program (TRIA) for seven years, as well as the National Flood Insurance Program for one year. These programs provide an important government backstop for natural and man-made disasters that would otherwise prevent commercial construction projects from moving forward. Additionally, this bill addresses many priorities in the tax, healthcare, and retirement space.

The National Labor Relations Board (“NLRB” or “Board”) on December 13 released a final procedural regulation rolling back some of the onerous requirements of the “quickie election” rule issued by the agency under the Obama Administration. The new rule, which was released at the end stages of lone Democrat Board Member McFerran’s term, is slated to take effect in April 2020.

For the eleventh year in a row, AGC of America has been named as one of the nation’s top lobbying operations by Capitol Hill newspaper The Hill. The publication’s annual ranking of top lobbyists lists AGC CEO Steve Sandherr as a top lobbyist. Sandherr said the listing is a really an acknowledgement of the quality of the association’s government relations team, noting that the team secured $7.6 billion in federal highway funding that Congress had planned to cut, a disaster aid package with billions of dollars dedicated to rebuilding impacted communities, and regulatory reforms to lower the bureaucratic burden on the industry, among other accomplishments this year.

The U. S. Department of Labor’s (DOL) Wage and Hour Division (WHD) released a final rule updating the regulations governing regular rate requirements under the Fair Labor Standards Act (FLSA) for the first time in more than 50 years. Regular rate requirements define what forms of payment employers include and exclude in the "time and one-half" calculation when determining workers' overtime rates. The rule focuses primarily on clarifying whether certain kinds of perks, benefits, or other miscellaneous items must be included in the regular rate. Because these regulations have not been updated in decades, the Department’s intent is to better define the regular rate for today's workplace practices. Click “read more” for further information on the new rule.

Industry Continues to Add Workers Faster and Pay Higher Wages than Overall Economy as Association Officials Call on Congress and the White House to Pass the JOBS Act, Boost Funding for Career Training

Dallas-Plano-Irving, Texas and Omaha-Council Bluffs, Neb.-Iowa Have Largest Gains; New York City and Fairbanks, Alaska Lag the Most as Industry Calls for Measures to Boost Supply of Qualified Workers

The National Labor Relations Board (NLRB) in LA Specialty Produce Company recently overturned an administrative law judge’s (ALJ) finding that an employer’s confidentiality rule and media rule violated the National Labor Relations Act (NLRA). Applying the balancing test articulated in its 2017 Boeing decision for the first time, the NLRB emphasized that a work rule is lawful if, when reasonably interpreted, it does not interfere with rights protected by the NLRA. The work rule must be considered in the context of its everyday application. Moreover, even if the rule in question might interfere with NLRA rights, the NLRB must weigh the impact of the rule on NLRA rights against the employer’s business justification for the rule. The rule is unlawful only if the adverse impact on NLRA rights outweighs the justification for the rule.