By Michael Metz-Topodas, Saul Ewing LLP

Hundreds of thousands of unfilled positions, an aging field worker population, and competition from other industries—all these factors significantly contribute to the construction industry’s workforce development problem and its struggle to attract and retain young workers to the profession. Anecdotally, industry insiders have blamed such low involvement on the “college for all” philosophy—school’s emphasis on four-year college, along with the careers that require such education. They also point to the prevalent, but mistaken, notion that construction entails unsophisticated work. More fundamentally, however, barriers to new participation in the construction industry may come from educational law and policy affecting secondary schools and the newest entrants to the labor market. Such laws do support construction-industry workforce development, but not necessarily to the degree the industry needs to address current labor shortages.

Federal Educational Law

Federal government involvement in secondary education comes from multiple statutes and regulations. Among the most significant, the Every Student Succeeds Act (ESSA) impacts curriculum and student exposure to the construction industry. Signed into law by President Obama, the ESSA scaled back federal involvement in K-12 educational content by reducing assessment requirements and consequences for not meeting associated benchmarks. But, in easing the depth of federal involvement, the ESSA retained and perhaps increased the breadth of involvement by requiring that state academic standards align with not only college entrance requirements, but also “relevant State career and technical education standards.” In addition, states can elect to include as an indicator of school success the strength and effectiveness of their career-readiness programs, which can include exposure to work in construction. Unfortunately, although the ESSA affords states the freedom to include technical education in their academic programs, it does little to require such education, including that which would promote student engagement in the construction industry.

Federal education funding follows a related pattern. The Strengthening Career and Technical Education for the 21st Century Act directs federal dollars annually to career and technical education. Similarly, the Workforce Innovation Opportunity Act funds state programs for workforce training targeted to regional industry hiring needs, which could include construction. Unfortunately the funding for these programs pales in comparison to that for federal higher education, such as the almost $27 billion of taxpayer dollars spent last year on Pell Grants. Further, no federal law expressly ties workforce development funding to construction-industry training and education, despite the nationwide need. In short, federal law encourages career and technical education, which includes construction, but does not require it nor equally fund it compared to other career opportunities.

State Career Readiness Initiatives

With limited federal involvement in curriculum decisions, including promoting construction career training, states have greater flexibility to incorporate career and technical education and career-readiness in their educational programs. Such initiatives can provide for greater exposure to, and experience with, the construction industry and increase workforce participation in construction post-secondary school. But, states’ autonomy over curriculum decisions has led to a patchwork of career and technical education requirements and career-readiness initiatives. Most states’ have a college and career-readiness definition that includes preparation for post-secondary education or industry certification programs, which can include construction. But, these definitions often follow that exact order (college-career), which, along with other language, tends to portray career-readiness as an afterthought to college-readiness. Worse, many states have no career-readiness requirement at all. Further, regardless of a career-readiness definition, only a handful of states have school performance accountability metrics that include participation or performance in career and technical education courses. Without such metrics, schools have little accountability when it comes to whether their curricula include career and technical education, including construction-industry related training.

Federal/State Labor Laws

In addition to limited federal direction and funding and inconsistent state emphasis on the construction industry in schools, child labor laws further complicate engaging early career-related exposure to the construction industry. Federal labor regulations bar minors—anyone under age 18—from performing certain types of field-related jobs, activities, and tasks, such as trenching and roofing. In some instances, federal regulations allow for exceptions for minors as apprentice or student-learner employees. Some state regulations also restrict the construction-related work those under 18 may perform. Although not necessarily prohibitive, these laws create an additional legal challenge the industry faces when trying to introduce young workers to the industry and develop a rising workforce.

What the Construction Industry Can Do

In addition to the legal obstacles, most construction companies face internal workforce development challenges in reaching the student population. Many lack the resources to hire full-time workforce development personnel, and their existing staff lack the time and training to take on that role. But what contractors cannot do should not preclude what they can. So contractors should consider these measures:

• encourage federal lawmakers, either directly or through trade association support, to strengthen education program requirements so they support career and technical education and career-readiness equally to college readiness;
• support legislative advocacy for increased career and technical education funding, especially construction-industry training;
• work with state legislators and regulators to ensure career readiness standards and programs include construction or technical careers;
• participate in outreach, mentoring, and other programs at local schools, including offering to participate in school career days and meet with counselors and teachers to increase awareness and understanding of construction work;
• hold an open house for students, educators, and parents to visit the company location and learn about the work contractors do;
• partner with charter schools or pre-apprenticeship programs.

It is unlikely any one construction company could carry out all these measures, but likely all construction companies can execute one of these recommendations. With the industry’s typical determination and ingenuity, it can work through developing greater legal support for industry workforce development.

About the Author

Michael Metz-Topodas is a partner in the Construction Group at Saul Ewing, LLP. His practice includes construction litigation, day-to-day project and claims counseling, and OSHA compliance and citation defense. Mr. Metz-Topodas represents general contractors, subcontractors, owners, designers, and suppliers on private, public, and federal projects. He counsels clients and handles construction disputes involving delay and inefficiency claims, design and construction defects, unforeseen site conditions, project scope disputes, bid protests, and payment claims, including mechanics liens, bond claims, and Miller Act claims. He can be reached at michael.metz-topodas@saul.com.