MORE THAN 900 ABC MEMBERS OPPOSE PLA EXECUTIVE ORDER: Thank you to Nebraska ABC members who joined more than 900 ABC member companies and employees submitted comments expressing opposition to a proposed rule that would, for the first time, establish a policy of “encouraging” federal agencies to consider imposing union-only project labor agreements (PLAs) on federal construction projects whose total costs exceed $25 million. The rule would implement President Obama’s Feb. 6 Executive Order 13502.
In comments filed with the Federal Acquisition Regulatory (FAR) Council during the extended public comment period, ABC members argued that their companies would be discouraged from bidding on projects because PLAs discriminate against their employees. Employees said that under PLAs, they would be forced to pay union dues; they would not benefit from employer contributions into union pension plans unless they were to join a union; and they may be denied employment altogether under union hall hiring requirements.
A new study released Sept. 23 by the Beacon Hill Institute (BHI), titled “Project Labor Agreements on Federal Construction Projects: A Costly Solution in Search of a Problem,” estimated that PLAs will significantly increase construction costs on federal projects. The BHI review of federal construction projects from 2001-2008, the years under which government-mandated PLAs were prohibited, also revealed that there were no instances in which labor disruptions occurred that resulted in significant project delays or increased costs. The study concluded that “the justifications for PLAs provided by Executive Order 13502 are unproven.”
APPLICATIONS FOR EPA LEAD-SAFE CERTIFICATION WILL BE ACCEPTED STARTING OCT. 22: The Environmental Protection Agency (EPA) Oct. 22 will begin processing applications for contracting firms seeking certification under the Lead-Safe Renovation, Repair and Painting (RRP) program. The RRP program was established April 22, 2008, when the EPA issued a rule requiring that contractors performing renovation, repair and painting projects that disturb lead-based paint in homes, child care facilities and schools built before 1978 must be certified and must follow specific work practices to prevent lead contamination. Under the RRP program, both firms and individual employees will need to be certified by April 22, 2010.
Firms can become certified by completing an application and sending in a fee payment. Applications may take up to 90 days to be approved by EPA. Individual renovation contractors must complete an EPA-accredited training course in order to receive certification. Certified lead abatement contractors with previous training may qualify for a shortened “refresher” course. For a list of available training sessions, visit www.epa.gov/lead/pubs/trainingproviders.htm. ABC Nebraska will be offering the EPA accredited training. Please contact Deb or Dick if you will be needing this training.
To learn more about EPA's rules and lead-safe work practices, visit www.epa.gov/lead.
STIMULUS RECIPIENTS MUST BEGIN REPORTING DATA ON PROJECTS: Recipients of funding from the American Recovery and Reinvestment Act of 2009 (ARRA) are required to enter data about their projects on the federal stimulus tracking website Oct. 1 – 10. Contractors are required to input data gathered on ARRA-funded projects between the date when the funding was awarded and Sept. 30. Data should be entered on FederalReporting.govand it will be available for the public to view on Recovery.govafter the reporting period closes.
In addition, ABC is offering a webinar Oct. 26, “Tapping Into the Stimulus Money: The American Recovery and Reinvestment Act,” designed to help ABC members better understand ARRA-funded work and the reporting requirements. The webinar will provide a general overview of federal contracting and how firms can successfully beat out the competition, particularly those entering into federal work for the first time. The webinar will address the opportunities, obligations and pitfalls of federal government contracting work and provide an understanding of the obligations associated with it.
CERTIFIED GREEN CONTRACTORS TAKE SUSTAINABILITY TO THE OFFICE: ABC members that believe the practice of sustainability extends past the jobsite can apply to ABC’s Green Contractor Certification program, which documents the efforts of members that are developing an environmentally friendly workplace environment. To meet the needs of its green members, ABC’s Green Contractor Certification program focuses on the sustainability initiatives firms undertake in the workplace, not on construction practices, and it certifies companies, not individuals. To achieve certification from ABC’s National Green Building Committee, each company must submit an application detailing its green efforts and undergo a third-party onsite assessment.
“ABC members have been on the forefront of the green building movement since its inception, but ABC also believes in stretching green achievements beyond the construction process and into the workplace,” said W. Brewster Earle, chairman of the ABC National Green Building Committee and president of Energy Services at Comfort Systems USA, in Hartford, Conn. “The Certified Green Contractor program is another step in ABC’s goal to provide support and recognition for those members who are setting an example for the industry by promoting green practices within the company and those members who would like to create sustainability in the workplace as well as in the construction practices.”
To learn more about the Green Contractor Certification program, click here.
FLSA UPDATE: On August 5, the United States District Court for the Western District of New York issued a decision against an individual which reminds all employers about the broad interpretation given to the anti-retaliation provisions of the Fair Labor Standards Act (FLSA). After the employees in question filed a complaint that the employer had violated the FLSA by underpaying the laborers, the father of the owner of the company contacted government officials claiming that the alien workers were “here for no good” and were connected to a terrorist organization based in Peru. The father also contacted the state attorney general’s office claiming that the employee plaintiffs were part of a “sleeper cell” of terrorists. These reports were made to various government agencies during the course of the FLSA case investigation including DHS. Even though the father was not the employer of the alien workers and was not an agent of the company, the federal court concluded that the father was an appropriate defendant in the FLSA retaliation lawsuit because the FLSA anti-retaliation provision refers to a “person” rather than to “an employer.” A magistrate judge concluded that the father had “no basis but his own prejudice” for accusing the alien workers of being terrorists and concluded that his comments were in retaliation for the alien workers filing the FLSA lawsuit in the first place. The federal judge agreed with the findings of the magistrate judge and ordered the retaliation case to be scheduled for trial against the father. This case is a reminder to all employers that the FLSA anti-retaliation provisions are intended to be broad and will be interpreted in that manner in federal court. Employers faced with an FLSA claim or lawsuit should devote their time and attention to assembling a defense to the FLSA charges and should be careful to avoid retaliating against the current or former employees who are claiming a violation of the FLSA. Failure to follow these guidelines could result in expensive federal court litigation which might involve personal liability.
By Bill Harding, Chapter Attorney
FALL 2009 TAX SEMINAR SCHEDULE: Do you find sales and use tax confusing? Would you like someone to explain sales and use tax to you in plain and simple language? The Nebraska Department of Revenue is conducting several educational seminars in our area. Below are just a few of the locations:
October 7 – Fremont, NE
First State Bank, 1005 E 23rd Street
Courses: FINA 501N 70 Nebraska Sales and Use Tax
FINA 503N 70 Microenterprise Tax Credit & Construction Contractors
8:30 a.m. – Noon – Sales and Use Tax
1:00 to 4:30 p.m. – Microenterprise Tax Credit and Construction Contractors
Register: Metropolitan Community College – (800) 228-9553 or (402) 457-5231
October 19 – Lincoln, NE
Southeast community College
8:30 – Noon – Sales and Use Tax
1:00 – 4:30 p.m. – Microenterprise Tax Credit and Construction Contractors
Register: Amy Chelsey (402) 437-2834
The Nebraska Department of Revenue offers these seminars as a free service; however, the facility may charge a fee. These fees are the responsibility of the attendee. For more information go to www.revenue.ne.gov
BARAB OUTLINES NEW FRONTIERS FOR OSHA: During a speech given at a recent Voluntary Protection Programs Participants’ Association conference, Jordan Barab, Acting Assistant Secretary of Labor, made a strong statement about OSHA. “We’re returning to OSHA’s original mission, as stipulated in the OSH Act, to assure safe workplaces for American workers and to ensure that employers comply with the law and safe working conditions.”
· OSHA is hiring around 130 new inspectors in FY 2010. Inspectors are also being added this year to ensure that work funded by the American Recovery and Reinvestment Act of 2009 is done safely.
· OSHA is launching a new Severe Violator Enforcement Program to improve our targeted inspections. This is a revitalization of the former Enhanced Enforcement Program.
· OSHA is taking swift action when problems are recognized. A construction sweep in several cities in Texas just finished in response to a growing number of fatalities. OSHA will be launching a number of similar initiatives in coming years as troubling trends indicate a problem.
· OSHA is seeking ways to raise penalties and make them a real disincentive to cutting corners on safety.
Finally, in addition to these enforcement initiatives, Barab stated that OSHA will continue to recognize the vital importance of compliance assistance to support more aggressive enforcement and standard-setting.