On January 5, 2018, the U.S. Department of Labor (DOL) reissued 17 previously withdrawn opinion letters addressing a wide range of topics under the Fair Labor Standards Act (FLSA). 15 of the 17 letters were originally signed off on during the final days of the Bush administration, but were withdrawn by the Obama administration “for further consideration by the Wage and Hour Division” on March 2, 2009, and stated that it would “provide a further response in the near future,” but never did. Instead, the Obama administration stopped issuing these letters altogether, instead releasing broader “Administrator’s Interpretations” that laid out how the department viewed employers’ specific obligations under the law. In June 2017, Secretary Acosta announced that he would reinstate the practice of issuing opinion letters.

AGC of America’s 99th Annual AGC Convention in New Orleans, LA, will feature a session called “State of the (Building Trade) Unions” where the Brent Booker, secretary-treasurer of North America’s Building Trade Unions, will speak. The session is scheduled for Monday, Feb. 26, 3:00-4:30 p.m. All Convention registrants are invited to attend. While organized labor represents a minority of workers in construction, its actions have a significant impact on the industry and on the nation in general, making this session of interest to both union and nonunion contractors and chapters alike.

On Dec. 19, 2017, the U.S. Court of Appeals for the Ninth Circuit became the fourth federal appellate court to expressly reject the U.S. Department of Labor’s (DOL) six-part test for determining whether interns and students are employees under the Fair Labor Standards Act (FLSA). On January 5, 2018, the DOL clarified that going forward, the Department will conform to these appellate court rulings by using the same “primary beneficiary” test that these courts use to determine whether interns are employees under the FLSA.

Republicans’ brief control of the National Labor Relations Board ended with the expiration of Chairman Philip Miscimarra’s term on Dec. 16, 2017. In anticipation of the change, the Board issued several employer-friendly decisions with significant impact. The most high-profile among them is a ruling in Hy-Brand Industrial Contractors that overturns the controversial, AGC-opposed joint-employer standard established in Browning-Ferris Industries.

On December 14, 2017, in a 3-2 decision by its then Republican majority, the National Labor Relations Board (NLRB) in the Hy-Brand Industrial Contractors case ruled that, to be classified a "joint employer" of another company’s employees under the National Labor Relations Act, a business must have a direct and immediate control over the employees. The decision overturns the Obama Board’s highly controversial and AGC-opposed 2015 ruling in Browning-Ferris Industries and effectively returns the joint employment standard to the prior standard.

Christopher Halapy, Shook ConstructionClients’ needs and expectations relative to the services provided by their design and construction partners are evolving. Savvy clients have increased their demand for turnkey services and a higher level of detailed information far earlier in the project planning process. Beyond programming, owners are looking to understand milestone dates, disruption of ongoing operations, and a firm cost for the project, all earlier than this information is typically provided.

Construction support staff wages rose by 3.5% in 2016 and contractors are projecting those wages to increase an average of 3.3% in 2017, according to the latest Contractor Compensation Quarterly (CCQ) published by PAS, Inc. Based on over 175 companies in the 14th edition of the Construction Support Staff Salary Survey, PAS reports that pay increases have been fairly consistent the past few years. Although, PAS points out that historically predictions are typically about low, so year-end 2017 could exceed 3.3% and look similar to 2016’s 3.5% increase.

Operating Engineers Local 18 has lost another battle in its war to regain jurisdiction over operation of forklifts and skid steers, this time in circuit court. The U.S. Court of Appeals for the Sixth Circuit (KY, MI, OH, TN) on October 31 upheld decisions by the National Labor Relations Board (“NLRB” or “Board”) that members of the Laborers were entitled to the work and ordering Local 18 to cease striking, threatening to strike, and maintaining grievances against the employers involved.

The Senate has confirmed Peter B. Robb to be General Counsel of the National Labor Relations Board (NLRB) for a four-year term. Robb is presently a management-side labor and employment lawyer with the law firm Downs Rachlin Martin in Vermont. His prior employment includes serving as chief counsel to an NLRB member.

Of all the accommodations considered reasonable under the Americans with Disabilities Act (ADA), perhaps the most frustrating is when an employee requests additional time off after their 12 weeks of Family and Medical Leave Act (FMLA) leave ends. This is particularly true since the ADA, unlike the FMLA, provides no statutory or regulatory parameters indicating the amount of additional leave employers must provide. However, a federal appeals court has just handed employers a milestone victory in one such legal battle that might ease the frustration levels for some.