On April 11, the Senate confirmed John F. Ring’s appointment to the National Labor Relations Board for a term expiring on December 16, 2022. Once Ring is sworn in, the Board will return to a full complement of five members, with a three-to-two Republican majority. Ring is currently a partner at the law firm of Morgan Lewis & Bockius in Washington, DC, where he co-leads the firm’s Labor-Management Relations Practice representing employers in a variety of labor and employment matters. He has been with the firm his entire legal career, starting in 1988.

International Union of Operating Engineers Pres. Jim Callahan has invited AGC members and staff to tour the union’s brand new International Training & Conference Center in Crosby, TX, on June 5. AGC is in the process of arranging hotel accommodations at a hotel at Bush Intercontinental Airport in nearby Houston for June 4 and will host a breakfast on June 5. Transportation to the Center will also be provided. The tour will begin around 10:00 a.m., followed by lunch hosted by the Operating Engineers.

On March 30, the U.S. Department of Labor’s (DOL) Office of Federal Contract Compliance Programs (OFCCP) announced the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) hiring benchmark for 2018. Effective March 31, 2018, the hiring benchmark will be 6.4 percent, down from 6.7 percent in 2017. This benchmark is an annual goal for the percentage of hires who are veterans at each affirmative action plan (AAP) establishment.

On April 3, the U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD) began officially accepting applications for the Payroll Audit Independent Determination (PAID) program and provided supplemental information about participation on the program’s website. The PAID program website includes information for an employer to determine the criteria for participating in the program, a brief description of compliance assistance materials, and the required elements of a self-audit. The site also includes details on how the program works and the process for the payment of wages. WHD will conduct a public webinar on Tuesday, April 10, 2018 at 1:00 pm Eastern time to provide an overview of the PAID program.

The use of the “Segal Blend” interest assumption to calculate a withdrawing company’s multiemployer pension liability was a “mistake” and unsupported by the record, according to the decision in The New York Times Co. v. Newspapers & Mail Deliverers’-Publishers’ Pension Fund, No. 1:17-cv-06178-RWS (S.D.N.Y. Mar. 26, 2018). This decision may have broad consequences for multiemployer pension plans and contributing employers, because the Segal Blend method is used by many of the largest multiemployer plans in the United States. It will most likely be appealed to the Second Circuit federal court of appeals.

As part of its ongoing efforts to increase transparency of preliminary findings with federal contractors, achieve consistency across regional and district offices, and encourage communication throughout the compliance evaluation process, the Office of Federal Contract Compliance Programs (OFCCP) has issued Directive 2018-01 standardizing the use of Predetermination Notices (PDN). A PDN is a letter that OFCCP uses to inform federal contractors and subcontractors of the agency’s preliminary findings of employment discrimination. In recent years, OFCCP has typically reserved use of the PDN for systemic discrimination cases and permitted regional and district offices discretion in whether to issue the PDN prior to issuing a Notice of Violation (NOV). The intent of Directive 2018-01 is to provide a uniform protocol for OFCCP staff to follow across all of its regions for using PDNs in both individual and systemic discrimination cases.

Submission Deadline Extended to Friday, March 16, 2018

On March 6, the U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD) announced a new nationwide pilot program, the Payroll Audit Independent Determination (PAID) program, which intends to facilitate the resolution of potential overtime and minimum wage violations under the Fair Labor Standards Act (FLSA). According to WHD, the program's primary objectives are to resolve such claims expeditiously and without litigation, to improve employers' compliance with overtime and minimum wage obligations, and to ensure that more employees receive the back wages they are owed—faster.

On March 6, AGC submitted comments to the U. S. Department of Labor’s (DOL) Employee Benefits Security Administration (EBSA) in response to a proposed rule intended to expand association health plans (AHPs) and increase flexibility for small employers to join groups or associations to offer insured health coverage in the large group market at potentially more favorable pricing with less restrictive requirements. A number of AGC Chapters across the country currently recognize the need to offer alternative health care options and have established AHPs that offer “group health plan” coverage to employees of members. AGC is supportive of the flexibility and opportunity the DOL proposes to provide, but is also concerned of negative impacts the changes might have on current Chapter-sponsored health plans and others who might be interested in sponsoring health plans.

The saga of the joint employer standard under the National Labor Relations Act continues. It began when the National Labor Relations Board (NLRB or Board) under the Obama Administration established a broader standard for determining joint employer status in the controversial Browning-Ferris Industries case in 2015. Under the new standard, joint employer status may exist even when a company merely exercises indirect control over, or has simply reserved the right to control, essential employment terms of another company’s employees. While the case was on appeal pending decision in the U.S. Court of Appeals for the District of Columbia Circuit (AGC submitted an amicus brief supporting the appeal with other associations), the Board reversed the Browning-Ferris decision in a separate case called Hy-Brand Industrial Contractors. The decision was issued in December 2017 during a brief period of time when the Board had a full complement of five members and a Republican majority, following Pres. Trump’s appointment of Republicans William Emanuel and Marvin Kaplan and prior to the expiration of Republican Philip Miscimarra’s term. The DC Circuit promptly remanded the Browning-Ferris case back to the Board for reconsideration in light of the Hy-Brand ruling.