The employer community has won another significant victory in litigation challenging the authority of the National Labor Relations Board (NLRB).  On May 16, the U.S. Court of Appeals for the Third Circuit invalidated President Obama’s March 2010 recess of Craig Becker to the NLRB.  The court agreed with the DC Circuit’s finding in the Noel Canning case that the President’s authority to make recess appointments is reserved for intersession breaks of the Senate, not intrasession breaks.  Becker’s appointment took place during an intrasession break. 

The next quarterly conference call of AGC of America’s Union Contractors Committee will take place on June 19, 2013, at 3:00 p.m. Eastern Daylight Time.  It will include reports and a roundtable discussion of collective bargaining activities and other local and national developments relevant to union contractors.  Participation is open to all AGC-member union contractors and their chapter staff. 

Beginning January 1, 2014, individuals and employees of small businesses will have access to health coverage through a health insurance market (known as an "Exchange" or "Marketplace") in their state. Open enrollment for the Marketplace begins October 1, 2013. The Affordable Care Act (ACA) requires employers to provide employees with a notice of their coverage options available through the Marketplace ("Exchange" or "Marketplace" Notice).

The U.S. Department of Labor (DOL) and the U.S. Department of Homeland Security (DHS) issued a joint interim final rule regarding prevailing wages for the H-2B guestworker program.  The rule establishes a new methodology for calculating prevailing wages under the H-2B low-skilled, nonagricultural guestworker program.  It took effect on April 24, the date it was published in the Federal Register.

On March 12, 2013, AGC submitted comments to the U.S. Department of Labor’s Wage and Hour Division (WHD) concerning its proposal to collect information from workers about their employment experiences and knowledge of laws regarding the misclassification of independent contractors as employees. The proposed survey would involve prescreening nearly 18,000 households leading to over 10,000 interviews of workers from various industries over a two-year period.  Since construction has often been mentioned by the WHD as an industry of focus with regard to worker misclassification enforcement, it is expected that construction workers will be targeted for survey participation.

On July 30, 2012, the National Labor Relations Board (NLRB) issued its decision in Banner Health System d/b/a Banner Estrella Medical Center, 358 N.L.R.B. No. 93 (2012), holding that an employer may not maintain a blanket rule prohibiting employees from discussing ongoing investigations of employee misconduct. In Banner Health, the Board rejected the employer's argument that the confidentiality instruction was necessary to protect the integrity of its investigations and found the employer's "generalized concern" insufficient to outweigh employees' rights under Section 7 of the National Labor Relations Act. Instead, the Board concluded, in every investigation, an employer must identify a specific need to protect witnesses, avoid spoliation of evidence or fabrication of testimony, or prevent a cover-up, before instructing employees to maintain confidentiality. Consequently, in the Board’s view, the blanket confidentiality instruction at issue in Banner Health violated the Act.

In another victory for the AGC-supported Coalition for a Democratic Workplace (CDW), the U.S. Court of Appeals for the District of Columbia Circuit (DC Circuit) has invalidated a regulation by the National Labor Relations Board (NLRB) that required most private-sector employers to post designated notices informing employees of certain rights under the National Labor Relations Act (NLRA), including the right to organize.  As previously reported, the Board published the controversial final rule in August 2011 but put implementation on hold after the DC Circuit issued a temporary injunction on the rule.  The court has now permanently enjoined the rule.  The CDW was a co-plaintiff in the case, the National Association of Manufacturers v. NLRB (D.C. Cir., 5/7/13).

The AGC Labor and Employment Law Council held its 29th Annual Construction Labor Law Symposium on April 18 and 19 in Washington, D.C.  Attorneys and chapter labor relations managers from across the country attended to learn about the latest developments in construction labor and employment law. 

Beginning on May 7, 2013, the U.S. Citizenship and Immigration Services (USCIS) division of the Department of Homeland Security will require all employers to use the newly released Form I-9, the Employment Eligibility Verification Form.  The new Form I-9 is longer and more complex than the previous version and comes with new rules affecting which documents may be used to verify the employment eligibility of workers.  There are also new instructions and additional data fields for employees and employers.  As a result, AGC will host a compliance assistance webinar on the new Form I-9.  The webinar will take place on Thursday, May 23 from 2:00-3:30 p.m. EDT.  The cost to participate is just $49 for AGC members and $79 for non-members. 

This week, the Senate bipartisan “gang of eight” unveiled their long-awaited immigration bill.  The 884 page bill covers border security, establishing an opportunity for earned legal status of undocumented workers, visa programs for highly skilled workers and temporary visas for lower skilled workers, and an employment verification system. AGC continues to review the entire bill and will be commenting on issues of high priority to the construction industry. One troubling provision is that the construction industry would be the only industry under a separate, smaller annual cap of eligible visas under the proposed temporary worker visas program for lesser-skilled workers.