May 2, 2019 - 2:00pm to 3:00pm ET

AGC of America’s Union Contractors Committee held two sessions during the association’s 100th Annual Convention in Denver, CO. At an open meeting of the Union Contractors Steering Committee on April 3, participants received updates from committee leaders and staff and conducted a roundtable discussion on matters of concern to union contractors and their AGC chapters. The committee also set the following dates for 2019 Union Contractors Conference Calls: June 11, September 10, and November 19. Each call will begin at 2:00 p.m. Eastern time and is open to all interested AGC members and chapter staff.

On March 28, a federal judge struck down portions of the U. S. Department of Labor’s (DOL) Employee Benefits Security Administration (EBSA) final rule intended to expand access to 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. U.S. District Judge John Bates of Washington, D.C., ruled that the bona fide association and working owner provisions exceeded the statutory authority delegated in ERISA, the Employee Retirement Income Security Act, and that the DOL rule "was intended and designed to end run the requirements of the ACA," the Affordable Care Act. Citing to a severability provision in the Final Rule, the judge has remanded the rule to the DOL to determine whether it can be saved without the invalidated provisions. Unless the ruling is reversed on appeal, this ruling will replace the prior restrictions on establishing AHPs under ERISA.

The U. S. Department of Labor’s (DOL) Wage and Hour Division (WHD) today announced a Notice of Proposed Rulemaking (NPRM) to revise and clarify the responsibilities of employers and joint employers to employees in joint employer arrangements. In 2017, the DOL withdrew the previous administrations sub-regulatory guidance regarding joint employer status that did not go through the rulemaking process that includes public notice and comment.

The U. S. Department of Labor’s (DOL) Wage and Hour Division (WHD) today announced a Notice of Proposed Rulemaking (NPRM) updating the regulations governing regular rate requirements 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 proposed 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 proposal’s intent is to better define the regular rate for today's workplace practices.

Today the U.S. Department of Labor’s (DOL) Office of Federal Contract Compliance Programs (OFCCP) announced the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) hiring benchmark for 2019. Effective March 31, 2019, the hiring benchmark will be 5.9 percent, down from 6.4 percent in 2018. This benchmark is an annual goal for the percentage of hires who are veterans at each affirmative action plan (AAP) establishment.

Awaiting EEOC Guidance on Reporting Requirements and Process

The National Labor Relations Board (the “NLRB” or “Board”) on March 1 issued an opinion expanding the rights of “Beck objectors” – i.e., those employees who are covered by a collective bargaining agreement but who choose not to become a member of the union.

Construction contractors are all-too familiar with Scabby the Rat. The inflatable rat – appearing in sizes of up to a reported 30 feet tall – has infested construction job sites as part of trade union protest activities targeting employers that are not signatory to union labor agreements. Unions use the rat as an attention-grabber and a signal that an employer is using non-union labor. Construction employers will want to keep an eye on legal developments regarding the rat this year, including a recent federal circuit court decision and the potential for the National Labor Relations Board (“NLRB” or the “Board”) to modify its approach to disputes involving Scabby.

In a significant ruling that will benefit companies, the National Labor Relations Board (“NLRB” or the “Board”) recently revised the test it uses for determining whether workers are employees or independent contractors under the National Labor Relations Act making it easier for entities to classify them as contractors. The decision in the case, SuperShuttle DFW, Inc., throws a roadblock into unionization efforts involving such workers, as federal law does not permit independent contractors to unionize or join forces with employees in organizing efforts. What do employers need to know about this development?