The AGC Labor and Employment Law Council (LELC) recently held its 32nd Annual Construction Labor Law Symposium in Washington, DC. Attorneys and chapter labor relations managers from across the country learned about the latest developments in labor and employment law and the significance for construction employers.
The event began with a pre-symposium workshop on joint employer law. LELC-member attorneys Larry Marquess, John Prager, Al Robinson, Ron Rasley, and Robert Fried provided presentations on the legal and practical concerns involved in a construction contractor being deemed a “joint employer” of another company’s employees under the National Labor Relations Act (NLRA), Fair Labor Standards Act, or Occupational Safety and Health Act.
The symposium itself kicked off the following day with a presentation by Richard Griffin, Jr., the general counsel of the National Labor Relations Board. Mr. Griffin also addressed joint employer issues in light of the Board’s recent decision in Browning-Ferris Industries, which broadened the definition of “joint employer” under the NLRA. When applying the test set forth in that case, Griffin said, one should begin by assessing whether the putative employer is a statutory employer under the NLRA. If so, then assess whether that employer “meaningfully affects” essential terms and conditions of employment. If so, then the company could be a joint employer. Griffin conceded that the decision provides “no relief” for those seeking certainty. When the Board changes a legal standard as it did there, we must wait and see how the standard develops as cases arise. Because the Board’s current standard is like the standard applied before 1984, he continued, looking at pre-1984 is useful in predicting how the present standard is likely to apply in the construction industry.
Dr. David Weil, the administrator of the U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD), also spoke at the symposium. He talked about his “three-pronged approach” to increasing employer compliance with wage and hour laws, which involves the use of: (1) enforcement tools; (2) outreach and education; and (3) strategic partnerships. He talked about how enforcement is affected by the “fissured workplace,” which is Dr. Weil’s term for describing the blurred lines between workers and businesses as companies increasingly contract out labor and related services. Dr. Weil indicated that he sees construction as a quintessential “fissured” industry, noting that independent contractor misclassification in the industry (and elsewhere) is a major concern for WHD as well as its state counterparts. The administrative interpretation he issued last year on independent contractor classification is an example of the “outreach and education” approach, he said. As an example of the strategic partnership prong, Dr. Weil cited cooperative efforts with Paul Johnson Drywall, a construction contractor that regularly used a labor broker engaged in elaborate misclassification.
Dr. Weil also talked about WHD’s current initiatives in Davis-Bacon Act administration. He reported that the agency has increased Davis-Bacon investigations over the past year, particularly going after companies that make noncompliance a part of their business model. WHD also is working with contracting agencies more to enhance enforcement, he said. He spoke further about WHD’s outreach and education efforts in the Davis-Bacon arena, including AGC-supported efforts to increase contractor participation in wage surveys. He took the opportunity to reiterate prior statements by other WHD officials intended to dispel the notion that survey participation will render a company an enforcement target.
Debra Carr, the director of the Division of Policy and Program Development within DOL’s Office of Federal Contract Compliance Programs (OFCCP) provided the Charles E. Murphy Keynote Address. In addition to reporting on OFCCP’s current regulatory and enforcement priorities, Carr engaged the audience in a dialogue about how the federal government can help the construction industry recruit more women and minorities into the construction trades. Carr and AGC hope to follow up with a broader discussion of the topic in a meeting not only with OFCCP but also DOL’s Employment and Training Administration and the Department of Education.
The symposium also featured presentations by LELC members such topics as: the top wage-and-hour sins leading to litigation and audits for construction contractors; the pitfalls of “BYOD” and other mobile device policies; the NLRB’s approach to confidentiality policies, codes of conduct, and other employer policies; marijuana and opiates in the workplace, and the NLRB’s non-deferral to arbitration.
Handouts from the symposium and pre-symposium workshop are posted in the Labor & HR Topical Resources area of AGC’s website. You login to the AGC website at www.agc.org as an AGC member 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. The LELC provides its 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 members of the LELC. To view a list of current LELC members, click here. For a searchable directory of LELC members, click here. For information about LELC membership, click here, or contact Denise Gold at goldd@agc.org or (703) 837-5326.
Joint Employer Law Workshop Panelists
NLRB General Counsel Richard Griffin
Wage and Hour Administrator David Weil
