SAFETY INITIATIVES LOWER CONSTRUCTION FATALITIES BY 20 PERCENT: The U.S. Department of Labor Aug. 20 reported that construction fatalities in 2008 fell 20 percent from the previous year to 969, resulting in a preliminary fatality rate of 9.6 per 100,000 workers, down from 10.8 in 2007. The final report will be released in April 2010.
Voluntary employer workplace safety initiatives, as well as Occupational Safety and Health Administration (OSHA) programs and training, are likely the reason for the decline in construction fatalities, according to Craig A. Shaffer, CSP, chairman of ABC’s Environment, Health and Safety Committee and president of Safety Works, Inc., Dillsburg, Pa. “These early numbers are supporting the case that self-directed integration of safety into their company’s culture is continuing to yield dividends for progressive contractors and their employees alike,” said Shaffer. “It is of utmost importance to ABC members that every employee return home safely to his or her family at the end of the day.”
To support safety on the job site, ABC offers the Safety Training and Evaluation Process (STEP) program to its members, which allows member contractors to regularly evaluate and strengthen their programs, yielding safety performance that is consistently better than the industry average. When compared with national construction averages, ABC members that participate in STEP have fatality rates that are 58 percent lower, OSHA injury rates
COMMENT PERIOD REOPENED FOR RULE ENCOURAGING PLAS ON FEDERAL PROJECTS: The Federal Acquisition Regulatory (FAR) Council Aug. 24 reopened the comment period on a proposed rule to implement President Obama’s Executive Order 13502, which encourages the use of government-mandated, union-only project labor agreements (PLAs) on federal projects costing more than $25 million. The proposed rule was issued July 14 following a policy memorandum by the Office of Management and Budget encouraging federal department and agency heads to immediately consider the use of PLAs on upcoming federal construction projects.
“More than 84 percent of the construction workforce consists of hardworking taxpayers that choose not to be represented by a union,” said 2009 ABC National Chairman Jerry Gorski, president of Gorski Engineering, Inc., Collegeville, Pa. “However, government-mandated project labor agreements will create a monopoly for unionized contractors on federal construction projects at taxpayers’ expense. Forcing PLAs onto federal projects violates longstanding federal procurement laws that require free and open competition, without favoritism.”
The regulatory process to implement the proposed rule includes a public comment period that began on the same day the regulations were released. The original comment period closed on Aug. 13 but has been reopened for another 30 days. ABC will submit comments to the FAR Council opposing the regulations, but is also encouraging all members to participate in the comment period by expressing their opposition to this policy and highlighting the negative impact it will have on their businesses by the Sept. 23 deadline.
FEDERAL COURT UPHOLDS LEGALITY OF E-VERIFY RULE DESPITE CONCERNS BY ABC: ABC Aug. 26 received news that a federal court rejected a challenge by ABC to the legality of Executive Order 13465 and a corresponding final rule, which amends the Federal Acquisition Regulation (FAR), by requiring certain federal contractors and subcontractors use the Department of Homeland Security’s (DHS) E-Verify system to verify that their employees are legally authorized to work in the United States. In December, ABC and its coalition partners challenged the authority of the government to promulgate this regulation and sought an injunction from the United State District Court for the District of Maryland, Southern Division. The legal challenge echoed ABC's position in previous comments on the rule, arguing that to require broader use of E-Verify would be illegal and expose contractors to needless liabilities.
“Obviously, we are disappointed with the decision, and we disagree with it,” said Bob Hirsch, ABC’s director of legal and regulatory affairs. “The coalition partners are evaluating the ruling with our attorneys to determine what our next steps should be.” In addition to ABC, the other members of the coalition that challenged the rule were the U.S. Chamber of Commerce, the Society for Human Resource Management, the American Council on International Personnel and the HR Policy Association.
Although the rule is slated to take effect Sept. 8, it is unlikely that federal contractors will be expected to comply before October. ABC is still reviewing the case and will continue to keep members updated as this matter develops.
DAVIS-BACON UPDATE: On July 30, 2009, the U.S. DOL Administrative Review Board (Board) ruled against a contractor and concluded that the contractor violated the Davis-Bacon Act by misclassifying and underpaying employees as laborers, rather than carpenters. The DOL investigator visited a construction project site on several occasions and observed two of the contractor’s employees “using carpentry tools and doing carpentry work.” In a later hearing before a DOL Administrative Law Judge (ALJ), the investigator testified that “once the tools of the trade are in their hands, the employees are carpenters and not laborers.” In response, the company vice president testified that he was not often present on the jobsite and admitted that the two employees “may have performed carpentry work.” On appeal from the ALJ decision, the contractor asserted that even if the two employees performed some carpentry work, this fact did not convert all of their work into carpentry work. The Board rejected this argument and noted that while employees may work in more than one job classification, it is the contractor’s responsibility to properly document and segregate the hours that employees work in each area. Since the contractor did not do so, the Board concluded that the contractor “must pay its employees the rate of the highest paid classification for all hours worked – here, the carpenter’s rate.” The Board also concluded that the contractor was liable for Davis-Bacon violations committed by its three subcontractors who also classified plumbers and electricians as laborers. The Board concluded that “it is well settled that a prime contractor is responsible for the back wages due employees of its subcontractor under the Act, and it is responsible for ensuring that all persons engaged in performing the duties of laborer or mechanic on the construction site receive the appropriate prevailing wage rates.” This decision is a harsh reminder for all prime contractors who perform work on projects covered by the Davis-Bacon Act of their responsibilities. Prime contractors who do not carry out their responsibility to see that workers on Davis-Bacon projects are properly classified and compensated may well face a very expensive surprise as was the situation in this case. By Bill Harding, Chapter Attorney
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ABC’s AFTER-WORK WEDNESDAYS WAS ANOTHER GREAT SUCCESS!
A Big Thank You to the Lincoln Networking Task Force,
Tom Cockle – UNICO Group, Derek Heiss – Hausmann Construction,
Chris Johnson – K2 Construction, Tyson Vogt – Gana Trucking & Excavating, and
RJ Lipert – General Fire & Safety Equipment for all their work in making
ABC’s After-Work Wednesday Networking Evening a great success.
If you were not able to attend, don’t worry…we’ll do it again!
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