ASA Begins Working with the 118th Congress
Since the members of the 118th Congress were sworn in a few weeks ago, ASA has been working to introduce our association to these newly elected members of Congress, along with maintaining our relationship with the returning members. ASA looks forward to continuing to serve as a critical voice for small and privately owned construction businesses in what is expected to be another challenging year on Capitol Hill. We will work with the 118th Congress to advocate for the protection and promotion of tax issues that are important to small businesses, privately owned businesses, and their owners, along with our continued commitment to maintain a high estate tax exemption to protect privately owned and small businesses from destructive taxes when they are passed down to future generations. Immediate priorities will include continued investment in infrastructure, tackling supply chain issues, addressing the labor shortage, promoting workforce development and contracting reform. Finally, opposing intrusive and burdensome legislation and regulations will be a major objective for ASA in 2023. Compliance and disclosure issues relating to ESG requirements, particularly those that are overly costly and/or burdensome, will be a major priority. We will keep you posted on our efforts throughout the year.
OSHA Adds “Instance-By-Instance” Citation Policy
On January 26th, the Occupational Safety and Health Administration (OSHA) issued new enforcement guidance allowing “instance-by-instance” citations for high-gravity” serious violations of several agency standards. Regional administrators and area office directors will have the authority to issue instance-by-instance citations for violations of fall protection, lockout/tagout, machine guarding, permit-required confined space, respiratory protection, and trenching standards, as well as for cases with other-than-serious violations of recordkeeping requirements. The new policy becomes effective March 27th.
In a separate enforcement memorandum, the agency reminded regional administrators and area office directors of their authority not to group violations but instead to cite them separately.
The FY23 Omnibus Appropriations Bill Brings Employment Law Changes
The Fiscal Year (FY) 2023 Consolidated Appropriations Act contained two important employment law changes, which will go into effect this year.
- Pregnant Workers Fairness Act – The Pregnant Workers Fairness Act has been introduced in every Congress since 2011 and made it across the finish line as an amendment to the spending bill in large part due to bi-partisan support and backing from some of the large employer-side groups including the Society of Human Resources Management (SHRM). The provisions will go into effect on June 27, 2023 and apply to all private employers with 15 or more employees. The new law requires covered employers to provide reasonable accommodations for pregnancy, childbirth or related medical conditions the same way that they would for other disabilities. Up to this point, federal law has only gone so far as expressly prohibiting discrimination against employees because of their pregnancy or pregnancy related conditions. To the extent that the employer is located in a state with no pregnancy accommodation law, the employer will need to make sure that they are complying with the Pregnant Workers Fairness Act by June of this year.
- Pump for Nursing Mothers Act – The Pump for Nursing Mothers Act expands employers’ obligation to provide employees with time and space for lactation. The major provisions of the new law went into effect at the time the legislation was signed into law.
New Core + HVACR Level 1 NCCERConnect Course Now Available
To help provide more seamless training options for introductory heating, ventilating, air conditioning and refrigeration skills, the National Center for Construction Education and Research (NCCER) is releasing the Core + HVACR Level 1 NCCERconnect course.
This new offering includes all the content from Core: Introduction to Basic Construction Skills, Sixth Edition and HVACR Level 1, Sixth Edition in a single online course. This will allow instructors to deliver both Core and the first level of the HVACR program using one learner access code, online grade book and classroom setup. To learn more about the Core + HVACR Level 1 course, sign in or register for NCCERconnect.
ASA Supports Public-Private Partnership (P3) Water Infrastructure Projects
In the 117th Congress and now in the 118th Congress, ASA will continue to support public-private partnership (P3) water infrastructure projects. At the very end of the 117th Congress, Reps. Lynch (D-MA) and Balderson (R-OH) introduced, H.R. 9665, which would apply payment and performance requirements for all construction projects receiving Water Infrastructure Finance Innovation Act (WIFIA) funding. In most instances (95-99%), the states’ “Little Miller Acts” require bonding at 100% or in practice, states and localities are requiring bonding at 100% for traditionally procured projects, so state or local applicants can merely attest to the Environmental Protection Agency (EPA) that the project(s) will be bonded as required under the state’s “Little Miller Act” and provide the percentage of bonding. Additionally, the legislation would provide a floor for security (bonding) at 50% of the construction costs, implementing a recognized industry standard minimum level of bonding, for security for large water projects to protect the federal interests in the prudent use of federal financing. This removes the burden from EPA to determine what would be an “appropriate” level of bonding. This would address the gaps existing in the bonding requirements for newer forms of project delivery, specifically P3s and possibly others. In those instances, the legislation contains a provision requiring state or local statutes or regulations for security requirements to be accepted by EPA so long as these requirements are at a minimum of 50% of the construction costs. As this legislation matriculates through Congress, we will keep you posted on it.
Latest from SESCO: Staff Recommendation Inclement Weather
This article is from our friends at SESCO Management Consultants, ASA’s Human Resource company. To learn more about this and all of the member benefits available through your ASA membership, click here.
Poor weather conditions in the winter months often raise pay-related questions for employers and employees. Employees may not report to work because of hazardous conditions or your business may close for the day. The issue is straightforward for nonexempt employees (i.e., paid on an hourly basis, subject to overtime pay). Nonexempt employees are paid for the actual time worked in a given workweek. Thus, if they do not report for work or the business is closed, they are not paid for the day. An employer may choose to allow these employees to use vacation or other paid time off to cover the lost wages.
The issue is a little more complex for salaried exempt employees. The question of pay is determined by whether or not the employer is open for business and whether the exempt employee works any part of the day. An employer that remains open for business during a weather emergency may lawfully deduct one full-day’s absence from the salary of an exempt employee who does not report for work for the day due to adverse weather conditions. In a recent opinion letter, the Department of Labor considers this an absence due to personal reasons; therefore, a deduction of a full-day’s pay will not violate the salary basis rule or otherwise affect the employee’s exempt status. It should be noted that deductions from salary for less than a full-day’s absence are not permitted for such reasons under the wage and hour regulations. The Wage and Hour Division has stated that an employer may, as an option, require an exempt employee who fails to report for work in this situation to take vacation or other paid leave to cover the full-day’s absence.
What about the pay of a salaried exempt employee if the business is closed? An employer may not make deductions “for absences occasioned by the employer or by the operating requirements of the business.” If the employer closes operations due to weather or other emergency for less than a full workweek, then the employer must pay an exempt employee “the full salary for any week in which the employee performs any work without regard to the number of days or hours worked,” because “deductions may not be made for time when work is not available.” Again, the Wage and Hour Division has ruled that an employer may direct exempt employees to take vacation or other paid leave in this situation, provided the employees receive in payment an amount equal to their guaranteed salary. However, if an exempt employee has no vacation or paid leave, they would still receive the full week’s salary in this situation (where the business is closed for less than a week).
Nonexempt employees paid based on a fluctuating workweek provide yet another challenge. Since an employee who works fluctuating hours for a fixed rate of pay is supposed to get the same pay whether he works short or long weekly hours, the government does not permit deductions for absences of less than a week, whether for illness, personal reasons, or other reasons including the employer’s failure to provide work or the inability to reach the workplace because of weather conditions. In other words, whether the business is closed for part of the week or remains open during inclement weather, nonexempt employees on the fluctuating workweek plan are paid their fixed weekly rate without having to use vacation or paid time off.
As a reminder, state regulation may differ from the federal Department of Labor, Wage and Hour Division’s wage payment regulations. Before making any weather-related deductions from guaranteed salary exempt employee wages, please contact your SESCO Consultant of record to verify compliance with state and federal regulation.
Knowify Releases Job Costing Guide
Do you know exactly how much money you’re making on each project, and why? Are you confident you’re bidding as aggressively as possible without risking your margin? Knowify has just published “The Essential Guide to Construction Job Costing,” which answers what to track, how to job cost, how to come up with a bid. If you’ve got questions, check out their 31-page, well-organized guide.
You can find it here in the InfoHub resource library along with a multitude of other critical resources like The Subcontract Document Suite, Negotiating Tips, Retainage Laws and so much more.
