by requiring firms with an average of five or more employees during the previous year and whose annual payroll expenses exceed $250,000 to pay for health insurance for their workers or be subject to a federally imposed fine of $750 per employee.  Comparatively, H.R. 3590 generally exempts other small businesses with fewer than 50 employees from the fines.  “Our nation cannot afford the enormous cost of this bill, with some estimates placing the cost at $2.5 trillion over 10 years of full implementation, and a very real possibility of a final dollar amount eclipsing what is estimated,” ABC stated in its letter. “If enacted, taxes are projected to increase by nearly half a trillion dollars, much of which will fall squarely on the shoulders of America’s small businesses.

ABC also denounced the path being considered to move the health care reform bill forward.  Although the action may be unconstitutional, the House is working to approve a rule governing the consideration of the reconciliation bill that will “deem” the Senate-approved health care bill passed upon adoption of the rule itself.  This would allow the House to pass health care reform without ever voting on it.  If the reconciliation package is then passed in the House, it would be sent to the Senate where it would only need a simple majority – 51 votes – rather than a 60 vote super majority, which is typically needed for legislation of this magnitude.  “We strongly oppose using the back door tactics known as reconciliation and the “Slaughter Rule” to pass such an expansive piece of legislation,” ABC said. “Congress should be allowed to address each portion of this bill and be afforded the time to thoroughly debate the merits of the provisions contained within this legislation.”

ABC OPPOSES LEGISLATION INCREASING EMPLOYER PENALTIES:ABC March 16 submitted a letter for the record in response to the House Education and Labor Subcommittee on Workforce Protections hearing titled, “Protecting American’s Worker Act: Modernizing OSHA Penalties.” ABC’s letter stated opposition to the Protect America’s Workers Act of 2009 (PAWA) which would greatly increase penalties on employers for safety violations.  The PAWA (H.R. 2067) changes the penalty scheme for safety violations by altering the requirement for criminal liability from acts that are deemed “willful” to acts that are deemed only “knowing” and by broadening the definition of employer from “any responsible corporate officer” to “officer of director.”  ABC expressed concern in its letter that these changes will lead to uncertainty and increased litigation, creating a combative relationship between employers and the Occupational Safety and Health Administration (OSHA).

ABC also opposed the provision in PAWA that denies employers due process rights by requiring immediate abatement and limiting their ability to challenge a citation.  ABC pointed out that OSHA already has the authority to seek an injunction if a hazard poses an imminent threat.  “ABC supports legislation that seeks to protect our members’ most important asset – their employees,” ABC said in its letter. “This must be achieved through legislation and regulations, which provide consistent enforcement, incentive programs to increase compliance, and education efforts, rather than efforts that will increase litigation, stifle cooperative programs and deny employer due process rights.”

CONSTRUCTION MATERIALS PRICES ARE STILL ON THE RISE: Although the cost of construction materials prices rose only 0.1 percent in February, materials prices are still 2.8 percent higher than one year ago, according to a March 17 producer price index (PPI) report by the U.S. Department of Labor (DOL).

“Today’s PPI report is consistent with what has been observed in recent months – construction materials prices are on the rise,” said ABC Chief Economist Anirban Basu.  “This is unfortunate because the nation’s nonresidential construction industry remains mired in its slump – a slump associated with declining construction spending and backlog.”  Softwood lumber experienced one of the largest increases in February, up 7.5 percent monthly and 17.7 percent year over year.  Iron and steel also continued to rise, seeing a 3.6 percent increase in February and a 13.5 percent increase over February 2009.  Fabricated structural and metal products saw a price increase of 0.9 percent on a monthly basis, but they are still down 4.8 percent year over year.

In contrast, prepared asphalt, tar roofing and siding prices saw a decline of 0.5 percent in February, but are still 2.6 percent higher compared to one year ago.  Prices for plumbing fixtures and fittings also decreased slightly for the month, dropping 0.6 percent, while still remaining 1.4 percent above February 2009 prices and concrete prices still hovered 0.4 percent higher than one year ago despite a decrease of 2.7 percent in February.  The largest monthly decline in prices belonged to nonferrous wire and cable, which saw a decrease of 3.1 percent in February; however, prices are still 2.2 percent higher than February 2009.

“Since construction materials are globally traded inputs, and with the Chinese and other countries around the world back in growth mode, upward pressure on materials prices is becoming increasingly evident,” said Basu.  “However, it is unlikely that contractors will suffer from the volatility in materials prices witnessed during the middle part of the prior decade,” Basu noted. “With the U.S. dollar remaining stable and with much of the world, with the exception of Asia, still expanding slowly, spikes in construction materials prices have yet to occur.”

Overall, the nation’s wholesale prices fell 0.6 percent – the largest drop in seven months – although prices are still 4.4 percent higher on a year-over-year basis.  The DOL attributed the decrease to a 2.9 percent drop in energy costs.  

ASK A LAWYER:

QUESTION: In the March 11, 2010, ABC Update, Chapter Attorney Bill Harding warned members to pay special care to ensure that workers are properly classified as either employees or independent contractors.  What should we be looking at to make sure that we are classifying our workers properly? 

ANSWER: While there is no single factor that tells you how to classify a worker, it all boils down to the “right to control the details” of the work, i.e. controlling the manner, mode, method or means of performing the work. 

Why is this a big deal?

Before looking at the factors, let’s first talk about why this is a big deal.  As most of you know, hiring someone as an employee as opposed to an independent contractor triggers a host of administrative requirements such as having to provide workers’ compensation insurance, withholding federal and state taxes, and paying the employers portion of taxes. All the laws governing the “employment relationship” kick in, such as wage and hour laws, discrimination laws, and wrongful termination laws. For independent contractors, none of this applies. 

It should also not be overlooked that an employer is legally responsible for the negligence of his employees, but may not be for the negligence of an independent contractor. By the same token, if an independent contractor is injured at the work place, his injury will not be covered by workers’ compensation.  As with most broad legal principles, there are exceptions, but these general rules apply in most circumstances. 

What should I look at in deciding if a worker is an employee or independent contractor?

We think its best to look at what the IRS and Nebraska courts will review.  They generally look to a three categories to determine the degree of control the employer exercises over the worker. 

Behavioral: Does the company control or have the right to control what the worker does and how the worker does his job?

Financial Control: Can the company direct or control the financial and business aspects of the worker’s job. This includes:

• The extent to which the worker has unreimbursed business expenses;
• The extent of the worker's investment in the tools used in performing services;
• The extent to which the worker makes his or her services available to others;
• How the business pays the worker; and
• The extent to which the worker can realize a profit or incur a loss.

Relationship of the Parties: How do the parties perceive their relationship? This includes:

• Written contracts describing the relationship the parties intended to create;
• The extent to which the worker is available to perform services for other, similar businesses.
• Whether the business provides the worker with employee-type benefits, such as insurance, a pension plan, vacation pay, or sick pay;
• The permanency of the relationship; and
• The extent to which services performed by the worker are a key aspect of the regular business of the company.

Ultimately, you have to weigh these factors to figure out if you have an employee or independent contractor.  If you pay for the result and exercise little or no control of how the contractor gets there, you probably have an independent contractor.  If you tell the worker where to go, when, how to get the job done, and provide the tools and equipment, then you probably have an employee.

If you have any questions about employee versus independent contractor, feel free to contact Craig Martin of Lamson Dugan and Murray, cmartin@ldmlaw.com or Tim Engler of Harding & Shultz, tengler@hslegalfirm.com.  

Training Classes

Management & Safety Class Schedule

MARCH & APRIL 2010

OSHA 10 Hour Class

OSHA requires a competent person on all job sites.  This course ensures that your people have the necessary training to comply with OSHA standards CFR

1926.32(f) for a competent person. Training includes OSHA Construction Standards CFR 29 1926, Scaffolds, Ladders and Stairways, Housekeeping, Personal Tools, Electrical Hazards, Fall Protection, Materials Handling, Hazardous Communications and much more!

**CFR 192 OSHA Regulations Book for the Construction Industry with new steel erection standards will be available for $25.00** each for class participants.

$135.00 each attendee – Member Price/$240.00 each attendee – Non-Member Price

¨      March 24, 2010 - – 7:00 a.m. – 5:30 p.m. – LINCOLN

¨      March 31, 2010 - – 7:00 a.m. – 5:30 p.m. – OMAHA

First Aid/CPR Classes             We have a newly purchased state-of-art AED trainer

$50.00 each attendee – Member Price/$60.00 each attendee – Non-Member

Recertification only - $40.00 each attendee – Member Price/$50.00 each attendee – Non-Member Price

¨  March 30, 2010 – 7:00 – 11:00 a.m. – OMAHA

¨  April 1, 2010 – 7:00 – 11:00 a.m. – LINCOLN

¨  April 14, 2010 – 7:00 – 11:00 a.m. – LINCOLN

¨  April 15, 2010 – 7:00 – 11:00 a.m. – OMAHA

TIME’S RUNNING OUT…SIGN UP FOR MOBILE CRANE SAFETY TRAINING TODAY.

Mobile Crane Safety Training

A workshop for all managers, supervisors, operators and riggers – presented by the Crane Institute of America.  Participants will learn what the crane standards  consist of.  This five day class will involve classroom time and actual hands on operation.  At the completion of the five day class applicants will have the opportunity to be certified for all three cranes.

$895.00 for first person from ABC Member Company, $825.00 for each additional person from ABC Member Company

$1,300.00 for each person from Non-Member Company

$450 for each recertification

¨  March 22 – 26,  2010 – 8:00 a.m. – 4:30 p.m. - LINCOLN

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Omaha Classes are held at the Education Center, 2602 Harney Street, Omaha

Lincoln Classes are held at the Training Center, 830 Westgate Blvd., Lincoln

PLEASE DUPLICATE THIS FORM FOR MULTIPLE CLASSES

Company:                                                                             Address:                                

Phone:                                                                                                         Fax:                                        

Names (please print):                                                                                               Class/Date:                            

                                                                                                                                   Cost:                                     

                                                                                                                                  Class/Date:                            

                                                                                                                                   Cost:                                     

Names (please print):                                                                                              Class/Date:                           

                                                                                                                                  Cost:                                    

Return Registration Form and Check Payable to Associated Builders & Contractors

830 Westgate Blvd., Lincoln, NE  68528    FAX 402-477-4522

Email-debh@abcnebraska.org