Mass. SJC Rules Independent Contractor Statute Doesn’t Apply in Workers’ Comp Case (MA)

Posted by National Alliance for Fair Contracting on

By Elizabeth Blosfield | May 16, 2018

The Massachusetts Supreme Judicial Court (SJC) has ruled the state’s independent contractor statute does not determine whether a claimant is an employee eligible for workers’ compensation benefits in a case that has led to questions about worker misclassification.

“Worker misclassification is a serious problem, both in our Commonwealth and across the nation,” SJC Chief Justice Ralph Gants wrote in a concurring opinion regarding the case.

This issue has come to light after a recent case involving claimant Ives Camargo, in which she sought review of a decision made by the reviewing board of the Department of Industrial Accidents regarding a claim she made for workers’ compensation benefits.

The board had affirmed the findings of an administrative judge by concluding Camargo was an independent contractor not entitled to workers’ compensation. Its decision was based on the definition of an employee in Massachusetts’ workers’ compensation statute.

“The law governing employment relations in this state remains far from uniform.”

After Camargo appealed, the case was transferred to the SJC, which upheld the decision that she is an independent contractor not eligible for workers’ compensation.

In the wake of the case, however, Gants called for the Massachusetts Legislature to consider greater uniformity among laws that classify workers. He added that part of the challenge in preventing misclassification is that there is no uniform definition of an employee. Instead, the law defines employees and independent contractors by several different standards depending on the context.

“In 2004, the Massachusetts Legislature took a significant step toward harmonizing these standards, amending the independent contractor statute…so that its presumption in favor of employee status applied not only to the wage and hour laws….but also to the minimum wage and overtime laws,” Gants wrote. “However, the law governing employment relations in this state remains far from uniform.”

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Somerville community groups demand union labor during Clarendon Hill construction (MA)

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Posted Apr 18, 2018 at 2:13 PM

A coalition of community groups and unions are campaigning to ensure that a for-profit developer pays prevailing wages and uses union labor on a public-private partnership to rebuild the public housing at Clarendon Hills.

The for-profit developer, Redgate, along with non-profit developers Preservation of Affordable Housing (POAH) and Somerville Community Corporation (SCC),are planning to renovate Clarendon Hill Apartments in Somerville and build market rate units to pay for it.

Public-private partnerships like this are part of a trend in to finance the redevelopment of existing public housing. The developers seek to minimize costs by getting a pass on the state’s prevailing wage law.

“We agree that the residents of Clarendon Hill should reside in the best housing possible, and that high quality affordable housing in Somerville should be accessible to all,” said Jaril Gauthier, a sheetmetal worker and Somerville resident. “However, we are opposed to the notion of betraying one important mission for another, especially when a private interest stands to make tens of millions of dollars off this so-called public-private “partnership.”

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High court puts prevailing wage repeal vote on hold (MI)

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Jonathan Oosting, Detroit News Lansing Bureau
Published 1:40 p.m. ET May 15, 2018

Lansing – A push to repeal Michigan’s prevailing wage law for construction workers hit a snag on Tuesday.

The Michigan Supreme Court suspended a lower-court order requiring the Board of State Canvassers to certify petition signatures as the seven justices decide whether to hear an appeal.

The high court did not rule on the merits of the case and could still reject an appeal by a coalition of unions and union-friendly contractors.

But the Tuesday afternoon “stay” prompted cancellation of a canvassers meeting and delays likely action in Michigan’s Republican-led Legislature, which is expected to take up the prevailing wage repeal measure if it reaches lawmakers. Approval would bypass a threatened veto by GOP Gov. Rick Snyder.

The 1965 law guarantees union-level pay and benefits for construction workers on projects funded by the state government. Repeal proponents argue prevailing wage inflates construction costs ultimately borne by taxpayers, while opponents maintain repeal would lower wages and limit training programs they fund.

The Michigan Court of Appeals last week ordered the Board of State Canvassers to certify the prevailing wage repeal petition after the panel deadlocked in late April in a 2-2 vote.

The Michigan Bureau of Elections had recommended certification of the prevailing wage ban ballot proposal, but both Democrats on the bipartisan panel voted against the prevailing wage repeal measure amid arguments over false addresses provided by circulators who had collected signatures.

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Repealing prevailing wage would be irresponsible (MI)

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2018-05-03 / Viewpoint

There’s been plenty of buzz lately around the need for Michigan to update its infrastructure. But when the state sends workers into our communities to fill our potholes, construct our bridges or renovate our schools, we expect the job will be done well. We don’t expect it to take years for them to repave a few blocks of our neighborhood, or that the cherry picker helping assemble an overpass will become part of the community’s scenery as the project lasts indefinitely.

We expect the job will be done on time and will be high quality, and that’s all thanks to Michigan’s prevailing wage laws.

Prevailing wage has gotten a bad reputation lately, but at the end of the day, all it means is that workers are getting paid the local average for construction projects in the area, guaranteeing the workers earn an honest day’s pay for an honest day’s work. That is just common sense.

Critics claim it’s too costly to pay state construction and skilled trades workers a fair wage, and if we repeal our prevailing wage laws, the state will save money and our economy will get on the right path.

But as simple as that sounds, studies show it simply isn’t true.

A study published earlier this year analyzed the effects of repealing prevailing wage on Indiana’s economy in the three years since it’s been eliminated. Rather than enjoying prosperous economic benefits as promised, the state has since suffered with higher worker turnover and lower productivity.

Tim Sneller, State Representative
Burton

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A Missouri ‘right-to-work’ law is more likely to harm black workers, who are more likely to be covered by a union contract than other workers (MO)

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Fact Sheet * By Valerie Wilson and Julia Wolfe * May 15, 2018

The phrase “right-to-work” (RTW) refers to laws that prohibit unions from collecting any fees from nonunion members in a bargaining unit despite the fact that these nonmembers are covered by-and thus would still receive the benefits of-the union contract. These benefits include the right to have the union provide costly legal representation should a worker in the bargaining unit find it necessary to file a grievance against his or her employer. Contrary to how the phrase sounds, RTW laws actually restrict the rights of workers by cutting the financial support going to unions, thus limiting the ability of unions to help workers bargain for better wages, benefits, and working conditions.

Currently, 28 states, predominantly in the Midwest, South, and Southwest, have right-to-work laws in place. Later this year, voters in Missouri will decide whether to adopt a new RTW law approved by the state’s general assembly last year.

This fact sheet illustrates the disproportionate impact that a Missouri RTW law could have on African American workers, by highlighting the group’s strong representation among unionized workers in Missouri. This analysis is based on union membership data available from the Current Population Survey (conducted by the U.S. Census Bureau for the U.S. Bureau of Labor Statistics) for 2010-2017, the period since the end of the Great Recession

In national studies that control for other factors than can influence wages statewide, including the cost of living, wages are still at least 3 percent lower in RTW states than in non-RTW states. While Missouri workers of every race will likely see the negative impacts of an RTW law, black Missourians would be disproportionately harmed by this right-to-work law. That is because black workers are more likely to be covered by a union contract (“unionized”) than other workers. As shown in Figure A, in Missouri, 13.9 percent of all black workers are unionized, compared with 10.3 percent of all white workers, and 9.3 percent of all Hispanic workers. Within the private sector alone, 10.5 percent of black workers, 8.0 percent of white workers, and 9.0 percent of Hispanic workers are covered by a union contract. Black Missourians’ participation in private-sector unions is slightly higher than participation by black workers in the private sector nationwide (9.4 percent)

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Construction Unions Ally with Striking Teachers to Fight for Prevailing Wage Laws (NC)

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BY: MIKE ELK
MAY 15, 2018

As North Carolina teachers go out on strike tomorrow, they will be joined by the ranks of the state’s construction unions. Much like teachers, who lack the right to collective bargaining in the state, construction workers employed on North Carolina’s state-funded projects, such as schools, lack the ability to have their wages set by union-endorsed prevailing wage standards.

They say the lack of collective bargaining rights for public employees in North Carolina is symptomatic of how the state also undervalues all workers employed on projects financed on the public’s dime.

“When your public employees are organized, it sets the standard and foundation for everybody else,” says North Carolina IBEW Local 379 President Scott Thrower. “When they are not, the private sector is setting the ground.”

While construction workers in other states enjoy the benefits of prevailing wage standards, construction workers in North Carolina do not. Under prevailing wage standards, contractors are forced to pay the median wage that construction workers are paid in that region as determined by a government survey-the idea being that government-funded projects are supposed to keep wages from falling.

“Prevailing wage levels the playing field,” says Thrower.

Without a prevailing wage, contractors on state-funded projects can simply pay their workers whatever they want.

While unionized electrical contractors in the state, working on federally funded projects that use prevailing wage standards, make a minimum of $25 an hour with retirement and health care benefits, non-union electrical contractors work on state-funded projects that often pay as little as $15-$20 per hour due to the lack of prevailing wage standards on state-funded projects.

Worse, union leaders say the lack of prevailing wage standards negatively affects high road contractors, who use higher training and safety standards.

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Laborers on a ‘Billionaires’ Row’ Tower Cheated of Wages, D.A. Says (NY)

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By James C. McKinley Jr.
May 16, 2018

The laborers were doing concrete work on the luxury Steinway Tower at 111 West 57th Street, a needlelike skyscraper set to open next year full of condominiums for some of the world’s wealthiest people. But the company employing the $25-an-hour workers, the authorities said, was cheating them out of hundreds of thousands of dollars in wages by purposely shorting their hours and failing to pay them overtime.

The Manhattan district attorney, Cyrus R. Vance Jr., said on Wednesday that the company, Parkside Construction, and its affiliates stole more than $1.7 million in wages over three years from about 520 workers at the tower and seven other high-rise buildings. The company also hid nearly $42 million in wages from state insurance officials to avoid paying millions in workers’ compensation premiums.

Many of the cheated workers were undocumented immigrants from Mexico and Ecuador, Mr. Vance said. When the workers complained, they were falsely told the money would be in their next check or were encouraged to find work elsewhere.

At a news conference announcing the arrests, Mr. Vance said the victims were especially vulnerable to exploitation because they were not in unions and did not have immigration papers. “Often it’s the very people who are tasked with building this great city who are the most vulnerable to fraud from their managers and employers,” Mr. Vance said.

Parkside Construction and its co-owners – Francesco Pugliese, 39, and Salvatore Pugliese, 46 – were charged with grand larceny, insurance fraud and scheme to defraud. Also charged in the scheme were Parkside’s construction foreman, James Lyons, 54; its payroll manager, Yenny Duarte, 42; an outside accountant, Michael Dimaggio, 58; and the owner of a Michigan payroll company, Jerry Hamling, 57. The Pugliese family’s companies made more than $100 million off the masonry and concrete contracts for the eight buildings.

“This was a business model for these defendants,” Mr. Vance said.

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Pittsburgh sets minority employment goal for city construction projects (PA)

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AARON AUPPERLEE
Tuesday, May 29, 2018, 2:06 p.m.

Pittsburgh will require contractors working on the city’s biggest projects to ensure at least 12 percent of on-site employees are minorities.

An executive order Mayor Bill Peduto signed Tuesday set the 12-percent goal.
Peduto said the city expects to spend $1.1 billion on construction projects in the next 10 years.

“We realize that we are at the cusp of a boom that is going to happen in the city,” Peduto said at a news conference. “We want to open up that opportunity to everyone because here’s the secret: We’re going to need a heck of a lot more workers.”

The executive order creates what’s known as a project labor agreement for city construction projects totaling more than $500,000.

Contractors must guarantee against strikes, lockouts or other job disruptions. The city’s minority- and women-owned business requirements still apply in addition to the new 12 percent on-site minority employment stipulation. The executive order allows the city to select the lowest responsible bidder on a project, regardless of whether it is union or non-union.

Project labor agreements used to be negotiated on a project-by-project basis, said Grant Gittlen, community and public affairs officer for the mayor. The goals for on-site minority employment varied for each project. Gittlen said the goals have been low in the past.

Peduto’s office worked on the agreement with labor leaders for a year and a half.

Peduto said city Councilmen Corey O’Connor of Squirrel Hill and Dan Lavelle of the Hill District will work to push legislation that will make his executive order part of the city code.

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Using ‘subs of subs,’ contractors able to evade liability in construction worker deaths (TN)

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Mike Reicher, USA TODAY NETWORK – Tennessee
Published 10:00 p.m. CT May 5, 2018

After his brother died falling off the roof of a North Nashville home under construction, Hermenegildo Dominguez heard nothing from the roofing subcontractor. He heard nothing from the general contractor. Nothing from an insurance company.

Typically, workers’ compensation would have covered $10,000 of funeral expenses, but Alfonso Dominguez, 60, was essentially off the books. It would cost $15,000 to fly his body to his hometown of Vera Cruz, Mexico, and bury him.

Only after the Spanish-language news site Nashville Noticias posted about the June 2017 accident on Facebook did Hermenegildo Dominguez get a response. But it wasn’t from the construction companies. Other immigrants throughout Nashville sent him donations.

Today, Dominguez, who cleans construction sites in Nashville, is less concerned about compensation: “What I really want is to get justice,” he said.

Alfonso Dominguez’s death shows how some construction companies can evade liability for accidents, especially in a booming city like Nashville. A labor shortage has led to a fracturing of work sites, where subcontractors can’t complete projects with their normal crews, so they hire small “subs of subs” below them. Workers at the bottom are sent onto scaffolding and roofs without safety equipment or training, or the assurance their families will be taken care of if they fall.

More construction workers died in the Nashville metro area in 2016 and 2017 compared with any two-year stretch in the previous three decades. Most of the 16 deaths were from falls without any harnesses or other protection.

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Register Now – 20th Annual NAFC Conference, August 19-22, 2018 – San Diego, CA

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May 2018

It’s our 2oth Anniversary! Save the date and join NAFC at our 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 as well as a California specific focus. The NAFC National Conference is attended by participants from across the nation, including representatives from labor organizations, responsible 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)

(Download Joint Conference Registration Form)