Ninth Circuit Considers Challenge to Prevailing Wage Law

Posted by National Alliance for Fair Contracting on

BIANCA BRUNO
February 5, 2018

(CN) – The Ninth Circuit Monday considered arguments by nonunionized construction groups challenging a California wage law they claim prevents the open-shop industry from exercising its free speech rights.

The Associated Builders and Contractors of California Cooperation Committee and Interpipe Contracting appealed the dismissal of their case brought against Attorney General Xavier Becerra, Labor Commissioner Julie Su and Department of Industrial Relations director Christine Baker, which challenged the constitutionality of an amendment to the state wage law that went into effect in 2017.

Senate Bill 954 only allows employers who make payments to an “industry advancement fund” as required by a collective bargaining agreement to receive a prevailing wage credit through a state subsidy.

(Read More)

(Order in ABC vs. Becerra)

Report: Worker-misclassification fight nets $1.4M

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By: Erika Strebel
March 16, 2018 1:25 pm

In 2017 alone, Wisconsin’s work to crack down on employers who misclassify workers as independent contractors instead of direct employees has netted nearly $1.4 million.

Because of seasonal layoffs that can muddy the distinction between permanent employees and someone hired for a specific job, worker misclassification is believed to be rampant in the construction industry.

Industry officials have said deliberate misclassification not only deprives the state of taxes and other resources but also gives dishonest companies an unfair advantage by letting them avoid costs that their more honest rivals roll into bid prices.

In 2017, the DWD continued its crackdown on misclassified workers, identifying 6,230 of them and collecting $1.4 million dollars that went back into the state’s unemployment-benefits system, according to a report released by the state Department of Workforce Development. The department also reported conducting 500 field investigations into worker misclassification.

About this same time last year, state officials had reported recovering nearly $1.13 million over the course of more than three years. The state started ramping up its enforcement of worker-misclassification laws in May 2013.

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Column: Trump expected to tout infrastructure plan this week, but funding remains murky

Posted by National Alliance for Fair Contracting on

By Mary Wisniewski
Jan 28, 2018

The long-promised Trump plan to rebuild the nation’s roads, bridges and other public works could finally be released in the next few weeks – the president is expected to tout his program in Tuesday’s State of the Union address, and more details may come in February.

But President Donald Trump’s plan could act like a derailed train and go nowhere fast because of funding questions. Everyone likes better roads and water systems, but many Republicans will balk if a gas tax hike is needed to pay for it, and Democrats have expressed doubts about what they see as its over-reliance on local government and private dollars.

“When they built the Hoover Dam, they didn’t say, ‘Let the states do it,’ ” said Democratic Illinois Congressman Mike Quigley in an interview. “(President Dwight D.) Eisenhower didn’t say ‘We’re going to build the interstate system and the states will pay for it.’ ”

How to fund the program is the big unanswered question, both on the local and the federal side, noted Frank Manzo, policy director for the Illinois Economic Policy Institute, a nonpartisan think tank whose members include representatives from the construction industry.

“The devil is in the details …” said Manzo in an interview. “The actual funding side is going to be very difficult and even more difficult in the wake of a tax reform plan that will result in fewer resources for government spending, let alone infrastructure projects.”

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(See Full PDF of Fact Sheet)

Hail the Prevailing Wage!

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A prevailing wage has come under attack from advocates looking for something cheaper. And it’s shameful!

BY GARY LABARBERA
MARCH 8, 2018 1:54 PM

This is New York. We don’t do “race to the bottom” here.

We don’t invite in bottom-fishers and corner-cutters to build our buildings. And we don’t scapegoat workers.

That’s because we need the best. So we build the best.

As a Commercial Observer reader, the same goes for you, too.

You don’t “race to the bottom” when it comes to staffing up your brokerage, your development company, or your investment firm.

Yet in the world of public-sector construction, prevailing wage laws have again come under attack from advocates of bottom fishing.

But prevailing wage laws are not just good for construction workers and the agencies undertaking public projects. These laws are also good for all New Yorkers.
For more than a century, New York State has maintained an important and progressive social compact: fair wages for fair work. The pay of workers engaged in public projects must align with local prevailing wage and benefit levels. Hard-working New Yorkers thus have access to good-paying jobs and proper protection from unsafe working conditions.
And with the State’s FY 2018 capital budget exceeding $14 billion, it’s critical to shake off faulty assumptions-and recognize that prevailing wage requirements also save taxpayers money.

New data now show how these rules ensure effective cost management on public projects.

…

Gary LaBarbera is the president of the Building & Construction Trades Council of Greater New York.

(Read More)

Prevailing Wage, Local Workers Sought for Affordable Housing Projects

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Posted by Debbie L. Sklar
March 14, 2018

Builders who receive city money for affordable housing and public works projects would be required to hire skilled, local workers and pay them a prevailing wage under a proposal advanced by a City Council committee Wednesday.

Councilwoman Georgette Gomez’s “HireSD” program would aim to lift people out of poverty by requiring developers in certain projects to hire workers who have completed apprenticeships or other training because those workers are paid a higher wage. The resulting demand for skilled workers would create an incentive for economically disadvantaged people to complete that training as a “pipeline to middle-class jobs,” the councilwoman’s Chief of Staff Dominika Bukalova said.

The plan would also require developers of certain projects to hire local people and pay a prevailing wage, a minimum wage currently paid in certain public works projects.

The rules would apply to projects that receive money from the city’s affordable housing fund and a business subsidy program. Part of the proposal is an expansion of a 2013 prevailing wage ordinance that applies to public works projects.

(Read More)

SAVE THE DATE – 20th Annual NAFC Conference, August 19-22, 2018 – San Diego, CA

Posted by National Alliance for Fair Contracting on

It’s our 20th Anniversary! Save the date and join NAFC at its next Annual Conference in sunny San Diego, CA. The Conference will be held at the Hilton San Diego Bayfront Hotel, in downtown San Diego. This year’s Conference will be jointly sponsored by the Center for Contract Compliance and will have a national and also a California specific focus. The NAFC National Conference is attended by participants from across the nation, including representatives from labor organizations, fair contractors, fair contracting compliance organizations as well as researchers, academics, attorneys and officials from federal, state and local governments.

Stay tuned for further information.

(Visit NAFC’s Conference Page)

City of Cincinnati, labor group win key lawsuit over contracting

Posted by National Alliance for Fair Contracting on

By Chris Wetterich
Jan 5, 2018, 2:57pm

Under federal law, it is OK for the city of Cincinnati to require bidders on contracts to have apprenticeship programs and health and retirement plans, the U.S. Court of Appeals for the Sixth Circuit has ruled, a major victory for Cincinnati City Council Democrats and the Laborers International Union, which pushed for the requirements.

The so-called “responsible bidder” ordinance has been the subject of lawsuits and long-running disputes between council’s progressive and conservative members since it was enacted in 2013.

…

In the case, Allied sued the city. A U.S. District Court judge ruled against the city but was reversed on appeal.

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Allied Construction Industries v. City Of Cincinnati, Laborers International Union of North America, Local 265 (United States Court of Appeals for the Sixth Circuit)

Posted by National Alliance for Fair Contracting on

January 4, 2018

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0004p-06.pdf

“We hold that the City was acting as a market participant in enacting the Ordinance, and therefore these provisions are not preempted by ERISA. … Cincinnati enacted Ordinance No. 282-2012 … to provide guidelines for selecting the “lowest and best bidder” on certain projects of the “Department of Sewers” …

[It] lists fifteen factors to be considered in selecting the lowest and best bidder, two of which are at issue here. Section 320-3(j) requires the bidder to certify whether:

  • it provides, or contributes to, a health care plan for those employees working on the project and shall provide a copy of the health plan upon request…
  • it contributes to an employee pension or retirement program, including, but not limited to, a 401K, a defined benefit plan, or similar plan, for its field employees working on the project and shall provide a copy of the plan upon request…
  • [it] imposes an apprenticeship standard, requiring each bidder to certify that “[f]or the duration of the project, the bidder will maintain or participate in an apprenticeship program for the primary apprenticeable occupation on the project,” and that that apprenticeship program must have graduated at least one apprentice for each of the past five years. …
  • [it] requires the winning contractor to pay $.10 per hour per worker into a preapprenticeship training fund, managed by the City. …

The City and the Union argue that the Ordinance cannot be preempted by ERISA because the City was acting as a market participant, rather than as a regulator, by codifying in the Ordinance its preferences for bidders… [T]he goal of “efficient procurement” does not restrict a state or municipality to selecting the cheapest possible bidder. To the contrary, “just as private entities serve their purposes by taking into account factors other than price in their procurement decision,” so too can a municipality…

In his report submitted in this case, Dr. Dale Belman, a professor at Michigan State University, explained:

“[p]rivate sector owners who undertake construction projects for their own use are concerned with factors beyond the bid price for a project. This reflects a purpose of minimizing the long term costs of a construction project where quality, timeliness, safety and predictability are as important as bid price in determining the capital and operating costs of a construction project. In adopting the ordinance, the [City] acted in a manner similar to other large owners who are building for their own purposes.”

[A] municipality might reasonably conclude that a contractor who provides these benefits is less likely to experience significant employee turnover, improving the stability and overall quality of a project. This is consistent with the City’s stated goal to find contractors who are committed to the City’s “safety, quality, time, and budgetary concerns.” …Moreover, the apprenticeship requirements in §§ 320-5 and 320-7 are connected to the City’s reasonable concern over a possible shortfall of trained workers who would be available for City projects in the future. … The City has a strong proprietary interest in developing a skilled workforce for its many future projects….

The City was acting as a market participant in enacting the Ordinance, and thus, the Ordinance is not subject to ERISA preemption… [W]e REVERSE … and direct the district court to enter judgment in favor of the City of Cincinnati.”

(Read More)

New York State Reciprocal Debarment Legislation Signed into Law by Governor Cuomo

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PRESS RELEASE GlobeNewswire
Dec. 22, 2017, 02:09 PM

On December 18, New York Governor Andrew Cuomo signed into law new reciprocal debarment legislation to amend labor and general municipal law, as it relates to reciprocity of debarments imposed under the federal Davis-Bacon Act. The bill states that any contractor debarred by the U.S. Department of Labor for violations of the Davis-Bacon Act cannot work on New York State public works projects. The statute will take effect in March 2018.

“This is an important new State law that ensures that contractors barred on the federal level from public works projects won’t have the ability to win new projects in the State of New York,” said John Ballantyne, NRCC’s Executive Secretary-Treasurer. “We’re pleased to support a law that ensures that hardworking men and women carpenters receive good pay and benefits from reputable, law-abiding companies in the State.”

…

“Unscrupulous contractors that violate workers’ rights don’t deserve to be rewarded with contracts paid for by hardworking taxpayers,” said Assemblymember Harry Bronson. “This law is a step in the right direction to help ensure that workers are protected from dishonest employers and our communities’ projects are completed by upstanding businesses that pay and treat their employees properly. Federal law, under the Davis-Bacon Act, dictates that contractors are prohibited from obtaining federal contracts if they’ve been debarred by the U.S. Department of Labor for wage payment violations. My legislation corrects a loophole in New York State law that allowed federally debarred contractors to still obtain state public works contracts. As a member of the Assembly Committee on Labor, I will continue to be an outspoken advocate for workers’ rights and continue to stand up for fair wages and vital protections.”

(Read More)

Guest Column: Prevailing wage supports Oakland County communities (MI)

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Andy Meisner is Oakland County treasurer
POSTED: 01/12/18, 3:12 PM EST

Big things are happening here in Oakland County. In November, Oakland County voters approved millions of dollars in public projects to improve our schools, sidewalks and communities – all smart investments in our future.

These projects show that our economy continues to grow. We’ve come a long way since the stagnant, cash-strapped Recession years, and we can make even more progress working together.

Unfortunately, some special interests in Lansing want to gamble with Michigan’s prevailing wage law in hopes of increasing their profits. That would create roadblocks to growth in Oakland County, and it’s the wrong move.

Repealing the prevailing wage is being hawked by special interests as a way to save taxpayers’ money. If that sounds too good to be true, it’s because it is. Repealing prevailing wage will send qualified workers out of state, leaving projects to lower-skilled workers. It will lead to expensive mistakes and cost-overruns that will be passed onto taxpayers when projects are built with cheap labor by out-of-state contractors, compromising safety and quality.

…

Prevailing wage is a smart investment that levels the playing field so local Michigan contractors have the opportunity to compete for public projects, without being undercut by the fly-by-night operations that employ cheap, low-skilled labor. By requiring all contractors who bid on a project to pay their workers a fair wage, quality contractors are challenged to work smarter and employ innovative ideas, not just cut costs by slashing wages.

(Read More)