announced in 29 C.F.R. § 778.217.  In the case decided by the Fifth Circuit, the employer paid a skilled painter at an artificially low “straight time rate” and paid an artificially high “overtime rate.”  The employer did not include per diem payments and the Fifth Circuit affirmed the federal district court in concluding that the per diem payments were a sham.  Rather than give pay increases to the painter, the employer increased the per diem rate even though there was no showing that the employee incurred any additional expenses in commuting to the jobsite.  The overtime rate paid by the employer generally matched the time and one-half requirement if the per diem payments had been included.  The Fifth Circuit agreed with the federal district court that the employer was attempting to avoid overtime payments by artificially increasing the per diem payments while keeping the “straight time pay” at an artificially low level.  This decision is a reminder that Nebraska construction industry contractors should take very seriously their obligation to comply with the overtime pay requirements of the FLSA.  Utilizing increases in a per diem payment, instead of normal wage increases, does not constitute compliance with the OT pay provisions of the FLSA and might result in very expensive federal court litigation as it did in this case.      By Bill Harding, Chapter Attorney

NLRB WILL REOPEN NEARLY 100 CASES FOLLOWING SUPREME COURT DECISION: The National Labor Relations Board (NLRB) July 1 announced that it will be reopening 96 cases that are currently on appeal before federal courts.  The announcement follows the U.S. Supreme Court’s June 17 ruling that the NLRB was not authorized to issue decisions during a 27-month period when three of its five seats were vacant, invalidating nearly 600 decisions. The 5-4 decision by the Supreme Courtresolved a series of conflicting appellate court opinions by clarifying what constitutes a quorum on the board.  According to the court opinion, the NLRB must have at least three members in order to issue decisions.

Each of the remanded cases will be considered by a three-member panel of the NLRB which will include the two members that originally decided the cases and one other member.  The remaining two board members will have the option to participate if they choose.  It is still unclear how the NLRB will handle the remaining rulings that have not been challenged in federal court.  The U.S. Senate June 22 confirmed two of President Obama’s nominees to the NLRB, Brian Hayes and Mark Pearce, bringing the total number of NLRB members to the full complement of five for the first time in more than two years. The full membership may not last long, however, as Peter Schaumber’s term expires in August.

ABC WARY OF EPA EXPANSION OF LEAD PROGRAM TO COMMERCIAL BUILDINGS: ABC July 6 responded to an advance notice of proposed rulemaking by the Environmental Protection Agency (EPA) that could eventually expand the agency’s Lead-Safe Renovation, Repair and Painting (RRP) programto include commercial and public buildings.  The notice announced that the agency is considering imposing Lead-Safe requirements on non-residential buildings, and is seeking information on lead-based paint hazards that may be created by commercial renovations to determine whether regulations should be issued.  EPA will determine whether to promulgate a rule by December 2011.  If the agency does proceed with a rulemaking, it plans to have the requirements finalized by July 2013, with implementation likely to begin on or before July 2014.

As part of a coalition with 14 other organizations, ABC filed commentswith the EPA cautioning the agency does not have authority to implement the rule.  In the comments, the coalition pointed out that the statute under which EPA would issue the rule grants the authority to issue guidelines for work practice standards but not the authority to impose regulatory requirements concerning those practices.  In addition, the coalition noted that the regulations exceed EPA’s authority because public and commercial buildings may present very different patterns of exposure to lead-based paint than in residential settings, which could result in different hazard types.  Since EPA acknowledged in the notice of proposed rulemaking that it does not have enough information to determine this because it is relying on old and unrelated studies, the coalition urged EPA to conduct a Congressionally mandated comprehensive study that is a prerequisite for imposing the rule before taking any regulatory action.

CONSTRUCTION UNEMPLOYMENT STUCK AT 20.1 PERCENT IN JUNE:Nonresidential construction lost 4,300 jobs in June but was up 1,000 jobs quarterly and was down 44,900 jobs on a year-over-year basis, according to the July 2 release by the Department of Labor.  Nonresidential building employment stands at 681,000 jobs.  Specialty trade contractors lost 13,000 jobs in June and 234,000 since June 2009, while heavy and civil engineering gained 1,300 jobs for the month and lost 38,200 year over year.

“Employment in nonresidential building construction continues to slump, a reflection of the fact that momentum in the broader economy has yet to meaningfully impact many segments of America’s nonresidential building construction industry,” said ABC Chief Economist Anirban Basu.  “This is particularly true for privately financed segments, where a lack of momentum was also reflected in the July 1 data regarding construction spending.”

The residential building construction sector lost 1,500 jobs in June and 51,100 jobs compared to June 2009.  Overall, the construction industry lost 22,000 for the month and 447,000 jobs year over year.  The June non-seasonally adjusted construction unemployment rate stayed flat at 20.1 percent, up from the 17.4 percent in June 2009.  Total employment decreased by 125,000 for the month and the national unemployment rate as 9.5 percent, the lowest since July 2009. 

“Hope remains that broader economic recovery will continue and eventually lift privately financed construction levels before the impact of the stimulus begins to fade,” said Basu. “Unfortunately, it appears that the lack of momentum in the construction industry is a reflection of what appears to be happening now in the U.S. economy.”

To read the full report, click here.

NEW GM DISCOUNTS FOR ABC MEMBERS:ABC has expanded its discount program with General Motors to include 2011 model year cars and trucks. Now, members can take advantage of savings on 2011 vehicles, in addition to 2010 vehicles.

ABC members that are non-fleet customers will save an additional $500 on most cars, pickup trucks and vans. These discounts can be combined with most other GM retail incentives available at the time of purchase. Members that participate in GM’s fleet purchase program are eligible for savings of $500 to $1,000, which will be added to GM’s standard fleet discount program. In addition, ABC members can still access savings on any available 2009 model year GM vehicles that were covered under the earlier program.

For more information savings on GM vehicles for ABC members, visit www.abc.org/gm.