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The percentage of union members in construction has decreased by more than a percentage point, from 14 percent in 2017 to 12.8 in 2018, according to the U.S. Bureau of Labor Statistics. The overall percentage of union membership in all industries is down from 10.7 percent in 2017 to 10.5 in 2018, with the total number of workers belonging to unions standing at 14.7 million. These numbers cover wage and salary workers belonging to unions broken down by demographics, industry, hours and state.  

BLS estimates 2018 total construction employment was 8.169 million workers, up from 7.844 million in 2017. A total of 1.048 million workers in construction belong to a union. As the number of total employees in construction has risen and the total number of construction employees in unions has stayed consistent, one can conclude that many of the new workers entering the industry are declining to join their local union. 

Other key finding from the BLS report:

• Hawaii joins New York as one of two states with the highest overall union membership rates in 2018, at 23.1 percent and 22.3 percent respectively.
• North and South Carolina had the lowest overall union membership rate in 2018, at 2.7 percent each. 
• The private sector union membership rate is 6.4 percent, considerably lower than the public sector rate of 33.9 percent, as expected.
• Union membership rates were again highest among workers aged 45 to 64—12.8 percent among workers 45 to 54 and 13.3 percent among those 55 to 64.
• All states in the Middle Atlantic and Pacific divisions had rates above the national average. A total of 20 states came in at or above the national average, with 29 states and the District of Columbia coming in below the average. All states in the East South Central and West South Central divisions had rates below the national average.
• California, New York, Illinois, Pennsylvania, Michigan, Ohio and Washington contained over half of the total union members in the U.S., while accounting for only one-third of total employment nationally. 

Within the next couple of weeks, the 2018 update of state-specific union membership data will be posted on unionstats.com. These numbers are compiled from the monthly household Current Population Survey using BLS methods. The site provides private construction percentages broken down by state, as well as numbers for certain metropolitan areas. The 2017 membership percentages for construction are also available on the Merit Shop Scorecard and will be updated as soon as 2018 state industry breakdowns are available. Highlights of the updated state data will be published in Newsline.

Visit the BLS’ website to view the news release or the full report. Contact Brandon Ray, ABC National’s senior manager of state and local affairs, with questions regarding issues related to union membership nationally or in your region or state.

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Employers covered by the Occupational Safety and Health Administration’s recordkeeping rule are required to post their 2018 OSHA Form 300A work-related injury and illness log summaries in an area where notices to employees are typically posted from Feb. 1 through April 30. The form must be posted in a visible spot at each covered establishment.
 
The summaries, which list the total number of job-related injuries and illnesses that occurred in 2018 and were logged on the employer’s OSHA Form 300A, must be certified by a company executive prior to posting and display. Employment information about the average number of employees and total hours worked during the calendar year is also required. 
 
Companies with no recorded injuries or illnesses in 2018 must still post the form, with zeros on the total line. Additionally, employers with 10 or fewer employees or those in certain industries may be exempt from OSHA record keeping requirements. 

Information on electronic submission of the OSHA 2018 Form 300A through OSHA’s Injury Tracking Application can be found here.
 
This article is intended for informational purposes only and does not constitute legal advice or opinion.

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On Jan. 18, the Treasury Department and the Internal Revenue Service issued final regulations and three related pieces of guidance implementing the new qualified business income deduction (also known as the section 199A deduction). The new 20 percent deduction for pass-through entities was created by the ABC-supported Tax Cuts and Jobs Act. 

According to an IRS new release, the deduction is available for tax years beginning after Dec. 31, 2017. Eligible taxpayers can claim it for the first time on the 2018 federal income tax return they file this year. For more information, read Forbes’ analysis. 

ABC released a statement through the Parity for Main Street Employers coalition stating that while the final rules provide some additional clarity, section 199A should be amended to be broader, simpler and permanent in order to maximize tax reform’s impact.

ABC submitted comments when the regulations were first proposed calling the new deduction for qualified business income the most important provision in the TCJA for ABC members, as the overwhelming majority of construction businesses are organized as pass-through entities. Therefore, it is crucial that Treasury and IRS get these rules right and allow this deduction to apply simply and fairly to the Main Street employers Congress intended the provision to benefit.

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ABC members Allen Myers LP and J.D. Eckman Inc. recently won a court case challenging the Pennsylvania Department of Transportation’s project labor agreement mandate for the Markley Street reconstruction project in Montgomery County. Tried in the Commonwealth Court of Pennsylvania, the court ruled on Jan. 11 that PennDOT’s PLA mandate violated the state’s competitive bidding laws and discriminated against nonunion contractors. 

“The court correctly recognized that government-mandated PLAs effectively exclude merit shop contractors and their skilled employees from building projects in their own communities paid for by their own tax dollars,” said Ben Brubeck, ABC’s vice president of regulatory, labor and state affairs. “This ruling will help ensure this project is procured via fair and open competition and will benefit local construction workers, contractors and taxpayers.”

PennDOT’s bid solicitation for the Markley Street project required contractors to execute a PLA agreement with the Building and Construction Council of Philadelphia and Vicinity or the United Steel Workers, which would have precluded nonunion contractors from using their own workers to staff the project. As a result, merit shop contractors like Allen Myers LP and J.D. Eckman Inc. were unable to effectively bid on the contract, restricting competition. 

“By requiring the winning bidder to hire all craft labor personnel through the local unions, the PLA introduced ‘uncertainty in bidding the job’ for prequalified nonunion contractors,” President Judge Mary Hannah Leavitt said in the ruling. “Notwithstanding (its) lip service to the principle of competitive bidding, the PLA does not place nonunion contractors on ‘an equal footing’ with union contractors.”

Leavitt also recognized J.D. Eckman Inc. for its work on phase one of the Markley Street project, which was successfully completed a year ahead of schedule and on budget without a PLA. In August 2017, PennDOT issued a solicitation that contained a PLA requirement for the second phase of the same project. Following public opposition from ABC against PennDOT Secretary Leslie Richards’ decision to impose a PLA mandate and a bid protest filed by plaintiff contractors, PennDOT withdrew the solicitation and issued a new one in December 2017 mandating a revised PLA.

“We were very pleased to learn of the Commonwealth Court’s ruling,” said G. David Sload, president and CEO of ABC Keystone Chapter. “PLAs are discriminatory toward merit shop contractors, which make up an overwhelming majority of Pennsylvania’s construction industry. This is an important step toward instituting a free-enterprise approach to public works contracting.”

Joe Perpiglia, president and CEO of ABC Eastern Pennsylvania echoed Sload’s comments, adding, “Whether they are called PLAs, responsible contractor ordinances or so-called public safety legislation, ABC stands ready to fight these discriminatory bidding practices and ensure a level playing field for merit shop contractors in Pennsylvania.” 

PLA mandates discriminate against the 86 percent of private-sector construction workers nationwide who choose not to join a union. In Pennsylvania, just 21.7 percent of the construction workforce is unionized. Research has also found PLA mandates can increase construction costs by 12 percent to 18 percent, resulting in fewer infrastructure projects and reduced construction industry job creation.

Since President Obama issued Executive Order 13502 in 2009 to promote project labor mandates on government-funded construction projects, 24 states have adopted legislation or executive orders ensuring fair and open competition on state and local taxpayer-funded projects. These states have adopted measures to create the conditions for the vast majority of skilled local labor and qualified contractors to compete to deliver to taxpayers the best possible product at the best possible price.

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The U.S. Department of Labor’s Occupational Health and Safety Administration has created a collection of events, training guides, videos and web pages to provide employers and employees with prevention and compliance assistance to prevent falls in the workplace.

According to a DOL news release, falls are the leading cause of worker fatality in the construction industry, and as part of the goals of the DOL’s Office of Compliance Initiatives, OSHA aims to promote awareness about common fall hazards, educate job creators and workers on fall prevention and reduce the number of fall-related injuries and fatalities.

Along with its web page on fall prevention, OSHA provides the following resources:

• The sixth annual National Safety Stand-down to Prevent Falls in Construction will be held May 6-10, 2019. The weeklong outreach event encourages employers and workers to pause during the workday to discuss fall hazards and how to prevent them.
• A series of videos show how to prevent construction-related fall hazards from floor openings, skylights, fixed scaffolds, bridge decking, reroofing and leading edge work.
• OSHA’s Fall Prevention Training Guide provides a lesson plan for employers, including several toolbox talks.
• Fact sheets on ladders and scaffolding provide guidance on the safe use of these types of equipment while performing construction activities.
• A brief video, Five Ways to Prevent Workplace Falls, encourages employers to develop a fall prevention plan and to provide workers with fall protection and training.

Additionally, OSHA offers an On-site Consultation Program that provides no-cost safety and health services to small- and medium-sized businesses. Job creators who implement workplace improvements can reduce lost time due to injuries and illnesses, improve employee morale, increase productivity and lower workers’ compensation insurance premiums, according to the news release.

ABC offers a variety of safety resources and tools for measuring safety performance through its Safety Training Evaluation Process and provides employers and employees with safety best practices.

Additional fall prevention materials and general safety information can be found on ABC’s website. 

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OSHA’s Electronic Injury Reporting and Anti-Retaliation final rule requires certain establishments to electronically submit information from their OSHA Form 300A for calendar year 2018 by March 2.
 
Who is required to submit the OSHA Form 300A?

• Establishments with 250 or more employees at any time during the previous calendar year must submit information from their 2018 Form 300A by March 2.
• Establishments with 20-249 employees in certain high-risk industries (outlined here) must submit information from their 2018 Form 300A by March 2.
 
If employers in State Plan states have questions about their obligation to submit injury and illness information, they should contact their State Plan office.
 
Information on how to electronically submit the OSHA Form 300A can be found on OSHA’s Injury Tracking Application website. 
 
Background on the rule:

• On May 12, 2016, OSHA issued the Electronic Injury Reporting and Anti-Retaliation final rule, also known as Improve Tracking of Workplace Injuries and Illnesses, which requires many employers to electronically submit detailed injury and illness records to OSHA. Also, some forms of post-accident drug testing and accident-free incentive programs are deemed to be unlawfully retaliatory. 
• Enforcement of the anti-retaliation provisions of the final rule went into effect on Dec. 1, 2016. The compliance schedule for certain employers to submit OSHA Form 300A information through the Injury Tracking Application is available here. 
• On July 30, OSHA proposed to remove certain provisions of its 2016 final rule, including the requirement that certain employers electronically submit their 300 logs and 301 forms to OSHA. The proposal failed to make any revisions to the anti-retaliation provisions. 
• ABC submitted comments on the proposed rule, highlighting its concerns about the rule’s failure to address the anti-retaliation provisions included in the 2016 rule. A final rule is expected imminently.
• A lawsuit filed against the 2016 final rule by ABC and a coalition of stakeholders has been paused awaiting the outcome of the current rulemaking.
• On Oct. 11, OSHA issued a memorandum clarifying its position on workplace safety incentive programs and post-incident drug testing included in the 2016 final rule. The OSHA memo is a positive step.

This article is intended for informational purposes only and does not constitute legal advice or opinion.

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The following companies have been awarded Accredited Quality Contractor status by ABC:

-Allan Myers of Worcester, Pennsylvania, a member of the Eastern Pennsylvania and Chesapeake Shores Chapters
-Broadmoor LLC of Metairie, Louisiana, a member of the New Orleans/Bayou Chapter
-Cianbro Corp. of Pittsfield, Maine, a member of the Maine, New Hampshire/Vermont, Connecticut, Empire State, Chesapeake Shores and Carolinas Chapters 
-Crossland Heavy Contractors of Columbus, Kansas, a member of the Heartland of America, Arkansas, and Oklahoma Chapters
-Delaware Elevator of Salisbury, Maryland, a member of the Chesapeake Shores and Delaware Chapters
-EnviroControl Systems Inc. of Dayton, Ohio, a member of the Ohio Valley Chapter
-Flint Builders Inc. of Roseville, California, a member of the Northern California Chapter
-Fortune-Johnson General Contractors of Atlanta, a member of the Georgia Chapter
-GFP Cement Contractors LLC of Newport, Delaware, a member of the Delaware Chapter
-Hypower Inc. of Fort Lauderdale, Florida, a member of the Florida East Coast Chapter
-Landscape Management Systems Inc. of Tumon, Guam, a member of the Guam Contractors Association
-Pro-Craft Construction Inc. of Redlands, California, a member of the Southern California Chapter
-Slack & Co. of Houston, a member of the Greater Houston Chapter
-Starr Electric of Greensboro, North Carolina, a member of the Carolinas Chapter
-Telligent Masonry LLC of Rockville, Maryland, a member of the Metro Washington Chapter
-Trade Construction Co. LLC of Zachary, Louisiana, a member of the Pelican Chapter
-Wadman Corp. of Ogden, Utah, a member of the Utah Chapter 
-Wu & Associates Inc. of Mount Laurel, New Jersey, a member of the New Jersey, Empire State and Eastern Pennsylvania Chapters

The AQC program recognizes and honors construction firms that document their commitment to excellence in five key areas of corporate responsibility: quality, safety, employee benefits, training and community relations. A company that meets the criteria set forth in the program and has earned Safety Training Evaluation Process (STEP) Gold, Platinum or Diamond status, is formally designated an “Accredited Quality Contractor.”

You can find a full list of ABC’s 2018 AQC members here. To find out how your company can achieve this honor, visit abc.org/aqc or contact aqc@abc.org.

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On Dec. 21, ABC submitted comments to the U.S. Department of Labor’s Employee Benefits Security Administration in support of its proposed rule to allow small and mid-sized businesses to band together and offer 401(k) plans to their employees through association retirement plans.

In its comment letter, ABC wrote that the DOL’s proposal will provide a vehicle for millions of hard-working Americans to save for the future through ARPs. By allowing more businesses to pool together to offer 401(k) plans, ARPs will create an attractive alternative for small employers to offer high-quality benefits to their workforce and allow them to focus their time and resources on managing the day-to-day activities of their businesses.

The proposed rule came at the direction of President Trump’s Executive Order 13847 on “Strengthening Retirement Security in America,” which ordered the U.S. secretary of labor to allow more small and mid-sized businesses to adopt multiple employer plans as a workplace retirement option.

Health Reimbursement Arrangements and Other Account-Based Group Health Plans (Proposed Rule)

On Oct. 29, the U.S. Departments of Labor, Treasury and Health and Human Services jointly published a proposed rule, Health Reimbursement Arrangements and Other Account-Based Group Health Plans, that seeks to expand the availability of affordable health insurance for hardworking Americans by increasing the usability of health reimbursement arrangements.

In December 2018, ABC submitted comments on the DOL’s proposal as a member of the Partnership for Employer-Sponsored Coverage. In the comment letter, ABC specifically urged the Department “to consider expanding the proposed classes of employees to include field employees (craft workers and laborers), whose employment often depends on the uncertain duration of a project. Distinguishing field employees from office staff would provide the flexibility necessary to increase the use of HRAs.” The proposed rule defines eight classes of employees to which an employer can offer HRAs for IHC purchase.

According to the DOL, HRAs are designed to give workers and their families greater control over their health care by providing an additional way for their employers to finance quality, affordable health insurance. If finalized, the rule would also provide opportunities for employers, especially small and mid-size employers that currently do not offer coverage or that face large administrative burdens in offering coverage, to finance individually selected health insurance on a tax-preferred basis.

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On Dec. 28, 2018, the D.C. Circuit Court of Appeals ruled in the 2015 Browning-Ferris Industries v. National Labor Relations Board case, which greatly expanded joint employer liability under the National Labor Relations Act. The divided court upheld portions of the Obama-era standard for determining “joint employer” status and remanded the case back to the NLRB for further consideration.
 
According to an article written by ABC’s General Counsel, Littler Mendelson, P.C., “The court of appeals reviewed the Board’s Browning-Ferris standard, examining specifically whether an employer’s “right to control” another company’s employees, or its “indirect” control over them, are appropriate factors in assessing joint-employer status. In a 2-1 decision, the court held that such factors could be probative of joint-employer status in a fact-based, case-by-case analysis. Importantly, the court expressly declined to consider whether the mere unexercised “right to control” another company’s employees, standing alone, would be sufficient to establish a joint-employment relationship.” A more detailed analysis of the court’s decision is included in the Littler article. 
 
Unfortunately, the court’s decision means continued confusion for employers. Additionally, the decision was issued as the NLRB conducts its rulemaking proceeding on the 2015 joint employer standard. ABC plans to submit comments on the NLRB proposal, which are due Jan. 14.  
 
ABC National will continue to keep members up to date on this issue in Newsline.

This article is intended for informational purposes only and does not constitute legal advice or opinion.

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JLG Industries Inc., an ABC strategic partner and a leading global manufacturer of aerial work platforms and telehandlers, kicked off its year-long 50^th anniversary celebration on Jan. 9, marking a half-century since its founder spearheaded the access industry with the introduction of the world’s first boom lift.

The company’s diverse product portfolio includes leading brands such as JLG^® aerial work platforms, JLG and SkyTrak^® telehandlers and an array of complementary accessories that increase the versatility and efficiency of these products. Learn more about the 50-year history of JLG by visiting their website.

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