As the New York state legislature adjourned in Albany, ABC’s Empire State Chapter members celebrated the successful blockage of an extremely onerous effort to expand prevailing wage in the state well beyond its typical applicability on public works projects. 

The effort, widely supported by Democrats in the legislature and Gov. Andrew Cuomo, sought to expand the definition of “public works” to a bevy of private projects receiving more than 30 percent of the project budget from public sources beyond direct public investment. This would have included things like tax-free bonds on affordable housing, various tax incentives on environmental cleanup work and energy-related tax credits, among other sources of public assistance. 

Unlike many prevailing wage states, as long as a union claims to represent 30% of the workforce, the state automatically adopts their wage and benefits for prevailing wage work. This expansion, on top of widening the pool of work for which it would be harder for merit shop contractors to compete, could have raised construction costs by as much as 30%. This would have severely harmed New York taxpayers, many of whom benefit from the projects with bottom lines that would have been negatively impacted by the proposed expansion.

Throughout the legislative session, the legislature and the governor’s office worked together to advance the measure through a variety of approaches, including a discussion about narrowing the scope of certain affordable housing projects to which the expansion would apply and even an effort to exclude New York City from the expansion altogether. However, in the face of widespread vocal opposition from ABC Empire Chapter and its members, as well as associated coalition groups, the bill was ultimately defeated. 

“There is no doubt that if passed, this bill would have crippled the construction industry,” said ABC Empire State Chapter President Brian Sampson. “Though this is a big victory for the chapter, the battle over expanding prevailing wage is not over, with Gov. Cuomo announcing that this is one of his top three priorities for 2020. We will continue to fight and advocate for even stronger protections against policies that damage the merit shop construction industry in the coming months and years.” 

On July 2, the Equal Employment Opportunity Commission updated the Component 2 EEO-1 Online Filing System website to include additional resources for employers. The website now includes a More Info section and a Frequently Asked Questions page. 

Under the More Info section, the EEOC offers resources to assist employers with filing their Component 2 EEO-1 data, including a sample form, an instruction booklet, a fact sheet and reference documents.

According to a notification letter sent to impacted employers, the EEOC has contracted with NORC at the University of Chicago, a non-partisan research institution, to collect the Component 2 data for 2017 and 2018. The web-based portal for the submission of the Component 2 EEO-1 reports for 2017 and 2018 will be active by July 15, 2019 via the Component 2 EEO-1 Online Filing System. Employers will be notified when this filing system is available.

The website also lists help desk information to offer filers additional support. Interested parties can contact the help desk by phone at 877-324-6214 or by emailing [email protected]. 

Background

In light of a recent court decision, certain employers will be required for the first time to submit detailed data on employee compensation and hours worked (or Component 2 data) for calendar years 2017 and 2018 to the EEOC as part of their annual EEO-1 form submission by Sept. 30, 2019. 

According to the EEOC’s FAQs, certain employers, including federal contractors, are required to submit EEO-1 2017 and 2018 Component 2 compensation data:

Employers, including federal contractors, are required to submit Component 2 compensation data for 2017 if they had 100 or more employees during the 2017 workforce snapshot period. Employers, including federal contractors, are required to submit Component 2 compensation data for 2018 if they had 100 or more employees during the 2018 workforce snapshot period.
Federal contractors with 50-99 employees are not required to report Component 2 compensation data.
Federal contractors with 1-49 employees, and other private employers with 1-99 employees, are not required to file either EEO-1 Component 1 data or Component 2 data.

The submission of Component 2 data was initiated during the Obama administration. However, under the Trump administration, the Office of Management and Budget blocked the EEOC from requiring employers to submit any compensation data. In March 2019, the D.C. District Court ordered the OMB stay to be vacated. 

ABC has been active in efforts to reverse the court’s decision or, at minimum, extend the time period for employers to comply with any new Component 2 pay data requirement. On May 3, the U.S. Department of Justice filed a notice of appeal of the court’s decision, but the outcome of the litigation is unclear at this time. The EEOC has since clarified that the appeal does not stay the district court orders or alter EEO-1 filers' obligations to submit Component 2 data, and EEO-1 filers should begin preparing to submit Component 2 data.

On June 26, the Senate Health, Education, Labor and Pensions (HELP) Committee approved the Lower Health Care Costs Act (S. 1895) by a bipartisan vote of 20-3. This bill seeks to address several cost-driver issues within our nation’s health care system including protecting patients from surprise medical billing and increasing transparency within health care. ABC, as part of the Partnership for Employer Sponsored Health Care, submitted a statement and comment letter to the HELP Committee ahead of the hearing and will continue to monitor any additional progress of this legislation in the Senate.

More than half of the women named on Constructech magazine’s 2019 Women in Construction list are leaders at ABC member companies.

Each year, Constructech recognizes powerful women in construction who are making an impact on the industry each day. “Even as the number of women in the construction industry continues to remain at roughly 9%, the women in the space are making some noise, proving they are innovative, passionate, tech-savvy and working to make the industry a better place,” says the magazine.

ABC congratulates members named on the 2019 Women in Construction list:

Carrie Arnold, Fluor Corp.
Elizabeth Calder, Suffolk Construction 
Adrienne Carlson, Faith Technologies Inc.
Rebekah Casey, Brasfield & Gorrie
Amanda Comunale, Victaulic
Valan Daniel, Gray Construction
Nicole Darling, Ryan Companies
Liz Fronduto, Power Design Inc.
Kelsey Gauger, Suffolk Construction
Kally Gibbs, Haskell
Jennifer Giese, Faith Technologies Inc.
Mona Kharouba, Suffolk Construction
Courtney King, Ryan Companies
Allison Lewis, Gray Construction
Marie Speakman, Suffolk Construction
Kaitlin Veenstra, Ryan Companies
Tamara Yang, Balfour Beatty US
Constance Lai, Grunley Construction Co. Inc. 
Adrienne Sherwood, Grunley Construction Co. Inc.
Ashley Martin, Flintco, LLC
Gabrielle Robitaille, Flintco, LLC
Gianny Romero, Flintco, LLC
Rachael Montosi, Kaplan Construction
Cristine Winchester, Flintco, LLC
Patricia Waller, Gannett Fleming
Debbie Watt, Shawmut Design and Construction

Find the full list of the 2019 Women in Construction here.

ABC President and CEO Mike Bellaman commented today on the U.S. Department of Labor’s proposed rule on industry-recognized apprenticeship programs—or IRAPs—which initially excludes the construction industry. 

“Established industry-recognized apprenticeship programs have been utilized by the merit shop construction industry for decades to provide hardworking Americans with not just a job, but a well-paid, in-demand construction career. ABC members invested $1.6 billion in craft, leadership and safety education for more than 980,000 course attendees in 2018 alone. And ABC will continue to lead the sector in recruiting, educating and upskilling the people who build the places where we live, learn, work and play. We are still reviewing the proposed rule and look forward to providing comments illustrating why all Americans would benefit from the construction industry being included in the IRAP final rule.”

More than 100 industry leaders and stakeholders came together June 24 for ABC's fifth annual Diversity & Inclusion Summit to discuss the value of diversity in construction. The summit kicked off with Thomas Grandmaison, managing director of strategy and innovation for Aon’s Construction Services Group; Derek Hoffine, operations manager for Hensel Phelps; and Luke Sherry, research analyst at the consulting firm FMI, who presented on the state of the construction industry. The session explored technology in construction, emerging trends and the role of diversity and inclusion in the workforce. 

In a keynote address, Frans Johansson, preeminent expert on diversity and innovation and bestselling author, inspired attendees by explaining how the best ideas and innovations come from collaboration between people with diverse experiences, skills, expertise, perspectives, backgrounds and cultures. In his remarks, he stressed how important diversity and inclusion are to both rewrite the rules and create new ideas. Johansson said, “Diversity and inclusion drives innovation. It is the one thing that is going to give you a competitive edge.” Johansson’s keynote address concluded with a rapid-fire feedback session where audience members shared their initial reactions to his perspectives. Johansson also signed copies of his book, “The Medici Effect.” 

Attendees also heard from a panel of small business owners and general contractors who provided practical solutions to help clarify the true meaning of capacity-building, going into detail about financial growth, expansion into new trades and more. Another panel spotlighted diversity efforts at the local ABC level, featuring ABC chapter presidents Peter Dyga of the ABC Florida East Coast Chapter, Brian Sampson of the ABC Empire State Chapter and Jean Toman of the ABC Delaware Chapter. Each panelist shared the unique tactics their organization used to achieve ABC’s goals of expanding diversity and inclusion initiatives and delivering best practices.

Caryn York, the first African American woman to lead the Job Opportunities Task Force in Baltimore, shed light on criminal justice reform and how the First STEP Act will help address the workforce shortage in the country. York shared details about Project JumpStart, an 87-hour pre-apprenticeship program that provides classroom and hands-on training to Baltimore residents. The day concluded with ABC Memorandum of Understanding partners the National Association of Minority Contractors, National Black Chamber of Commerce, U.S. Pan Asian Chamber of Commerce, U.S. Veterans Business Alliance and Women Construction Owners and Executives speaking about collaboration, synergies, partnerships and more. 

ABC, its chapters and member companies strive to embrace diversity as an empowering competitive advantage through education, awareness and business practices. ABC’s diversity outreach is led by the association’s Diversity Committee, which was established in 1999 as a key component of ABC’s value proposition to develop people, win work and deliver work safely, ethically and profitably for the betterment of the communities in which they work. The committee also plays an instrumental role in ABC’s strategy to grow and deliver value to a diverse and committed membership.

More than 500 ABC members are currently in Washington, D.C., for Legislative Week 2019, meeting with top administration and congressional leaders on the issues impacting the merit shop construction industry. The annual Legislative Day kicked off this morning, with members hearing inspiring calls to action from merit shop advocates and an overview of ABC’s legislative objectives for the year. Keynote speakers included Mercedes Schlapp, assistant to President Trump and the White House director of strategic communications, and Rep. Dan Crenshaw (R-Texas), who both spoke about their respective political priorities and the current state of American politics.

Legislative Week also featured the ABC Young Professionals Symposium, where prominent speakers helped attendees understand the ins and outs of lobbying, grassroots advocacy and how to make their voices heard at both the local and national levels. The Free Enterprise Alliance held a reception Tuesday evening where members networked, rallied around the principles of free enterprise in construction and heard political insights shared by keynote speakers Ed Henry, chief national correspondent for Fox News Channel, and U.S. Senator Rick Scott (R-Fla.). 

Tomorrow, ABC’s Legal Conference will update attendees up on the latest developments in employment and labor law and open competition in the industry. Featured speakers include Peter B. Robb, the general counsel of the National Labor Relations Board, and Kate S. O’Scannlain, the solicitor of labor for the U.S. Department of Labor. Experts will explain legal and regulatory issues confronting the merit shop, as well as legal battles ABC anticipates during the year ahead. Labor attorneys, contractors and ABC chapter presidents and staff will network and share ideas centered around the merit shop philosophy. 

On June 25, ABC submitted comments to the U.S. Department of Labor’s Wage and Hour Division on its proposed rule to update and clarify its interpretation of joint-employer status under the Fair Labor Standards Act. Additionally, the ABC-led Coalition for a Democratic Workplace submitted comments in support of the DOL’s proposal.

In its comments, ABC applauded the DOL’s proposal to replace the outdated current rule because the text of the rule caused significant confusion among different federal circuit courts, which then “confused and frustrated efforts of construction employers to maintain longstanding industry practices that have allowed the industry to perform services on a cost-efficient basis.”

ABC also expressed support for the DOL’s proposal to exclude the three examples of “economic dependence” factors from the joint-employer analysis relating to the construction industry—whether the employee is in a specialty job or a job otherwise requiring special skill, initiative, judgment or foresight; has the opportunity for profit or loss based on managerial skill; and invests in equipment or materials required for work or the employment of helpers. Additionally, ABC supported the specific exclusion of certain longstanding business practices from the joint-employment analysis, including requirements that another entity institute workplace safety measures, wage floors or sexual harassment policies. Finally, ABC recommended the Department include additional specific exclusions in the final rule. 

Background

Published in the Federal Register on April 9, the DOL’s proposal would ensure employers and joint employers clearly understand their responsibilities under the FLSA to pay at least the federal minimum wage for all hours worked and overtime for all hours worked over 40 in a workweek. 

Specifically, the DOL proposes a four-factor test for determining joint employment under the FLSA and will consider whether the potential joint employer actually exercises the power to:

  Hire or fire the employee;
  Supervise and control the employee’s work schedules or conditions of employment;
  Determine the employee’s rate and method of payment;
  And maintain the employee’s employment records.

More details can be found in the proposal and in a fact sheet on the DOL website.

ABC will continue to provide status updates on the DOL’s joint employer rule in Newsline.

ABC awarded Caesar Gorski, former president of Gorski Construction Co. of the ABC Eastern Pennsylvania Chapter, its Life Membership award during ABC Legislative Week 2019 in Washington, D.C. 

Gorski Construction was named General Contractor of the Year by the Eastern Pennsylvania Chapter three times and was awarded many National Excellence in Construction^® awards. Gorski Construction participated in ABC’s STEP safety management system and was an Accredited Quality Contractor.

Gorski joined the ABC Delaware Valley Chapter in the 1960s as his company grew from a custom home builder to construct commercial projects. He and a few others helped form the ABC North Jersey Chapter, and he was a founding member of the ABC Lehigh Valley Chapter, where he served on both the Board and Executive Committee. 

Gorski was a member of ABC’s National Board of Directors throughout the 1980s. He was a member of the ABC Eastern Pennsylvania Chapter Board from 1985-1988 and was chapter chair in 1987. Gorski is a National Beam Club member and a contributor to PAC and the Trimmer Construction Education Fund. He recruited more than ABC 50 members over the years. His son, Jerry, now works for Gorski Construction and has served in many ABC leadership roles throughout the years.

On June 19, the U.S. Environmental Protection Agency issued the Affordable Clean Energy final rule, which replaces the Obama administration’s overreaching Clean Power Plan with a rule that restores rule of law, empowers states and supports energy diversity.

In the notice, the EPA finalizes three separate and distinct rulemakings: 

Repeal of the CPP; 
The ACE rule, which establishes emission guidelines for states to use when developing plans to limit carbon dioxide at their coal-fired electric generating units; and
New regulations for EPA and state implementation of ACE and any future emission guidelines issued under the Clean Air Act section 111(d).

On Oct. 31, 2018, ABC submitted comments in support of the EPA’s ACE proposed rule, stating that the EPA has taken a more reasonable approach to addressing carbon emissions while supporting businesses and jobs and ensuring necessary and essential environmental protections in our communities. 

Additionally, ABC submitted comments in support of the EPA’s proposal to the repeal the CPP in January 2018. Had it gone into effect, the Obama administration’s CPP would have imposed strict regulations on coal-fired power plants, increasing compliance and transaction costs and creating uncertainty for America’s small businesses.

On March 28, 2017, President Trump signed Executive Order 13783, Promoting Energy Independence and Economic Growth, which directed the EPA administrator to review the CPP. Following the review, the EPA published the proposal to repeal the CPP on Oct. 16, 2017 and the new ACE proposed rule on Aug. 31, 2018. 

For more information on the ACE final rule, see the EPA’s fact sheet and website.