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The use of the “Segal Blend” interest assumption to calculate a withdrawing company’s multiemployer pension liability was a “mistake” and unsupported by the record, according to the decision in The New York Times Co. v. Newspapers & Mail Deliverers’-Publishers’ Pension Fund, No. 1:17-cv-06178-RWS (S.D.N.Y. Mar. 26, 2018). This decision may have broad consequences for multiemployer pension plans and contributing employers, because the Segal Blend method is used by many of the largest multiemployer plans in the United States. It will most likely be appealed to the Second Circuit federal court of appeals.

As part of its ongoing efforts to increase transparency of preliminary findings with federal contractors, achieve consistency across regional and district offices, and encourage communication throughout the compliance evaluation process, the Office of Federal Contract Compliance Programs (OFCCP) has issued Directive 2018-01 standardizing the use of Predetermination Notices (PDN). A PDN is a letter that OFCCP uses to inform federal contractors and subcontractors of the agency’s preliminary findings of employment discrimination. In recent years, OFCCP has typically reserved use of the PDN for systemic discrimination cases and permitted regional and district offices discretion in whether to issue the PDN prior to issuing a Notice of Violation (NOV). The intent of Directive 2018-01 is to provide a uniform protocol for OFCCP staff to follow across all of its regions for using PDNs in both individual and systemic discrimination cases.

Submission Deadline Extended to Friday, March 16, 2018

On March 6, the U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD) announced a new nationwide pilot program, the Payroll Audit Independent Determination (PAID) program, which intends to facilitate the resolution of potential overtime and minimum wage violations under the Fair Labor Standards Act (FLSA). According to WHD, the program's primary objectives are to resolve such claims expeditiously and without litigation, to improve employers' compliance with overtime and minimum wage obligations, and to ensure that more employees receive the back wages they are owed—faster.

On March 6, 51���� submitted comments to the U. S. Department of Labor’s (DOL) Employee Benefits Security Administration (EBSA) in response to a proposed rule intended to expand association health plans (AHPs) and increase flexibility for small employers to join groups or associations to offer insured health coverage in the large group market at potentially more favorable pricing with less restrictive requirements. A number of 51���� Chapters across the country currently recognize the need to offer alternative health care options and have established AHPs that offer “group health plan” coverage to employees of members. 51���� is supportive of the flexibility and opportunity the DOL proposes to provide, but is also concerned of negative impacts the changes might have on current Chapter-sponsored health plans and others who might be interested in sponsoring health plans.

The saga of the joint employer standard under the National Labor Relations Act continues. It began when the National Labor Relations Board (NLRB or Board) under the Obama Administration established a broader standard for determining joint employer status in the controversial Browning-Ferris Industries case in 2015. Under the new standard, joint employer status may exist even when a company merely exercises indirect control over, or has simply reserved the right to control, essential employment terms of another company’s employees. While the case was on appeal pending decision in the U.S. Court of Appeals for the District of Columbia Circuit (51���� submitted an amicus brief supporting the appeal with other associations), the Board reversed the Browning-Ferris decision in a separate case called Hy-Brand Industrial Contractors. The decision was issued in December 2017 during a brief period of time when the Board had a full complement of five members and a Republican majority, following Pres. Trump’s appointment of Republicans William Emanuel and Marvin Kaplan and prior to the expiration of Republican Philip Miscimarra’s term. The DC Circuit promptly remanded the Browning-Ferris case back to the Board for reconsideration in light of the Hy-Brand ruling.

Brent Booker, secretary-treasurer of North America’s Building Trade Unions (NABTU), addressed attendees at a Union Contractors Committee-sponsored session during 51���� of America’s Annual Convention in New Orleans, LA, on Feb. 26. He talked about NABTU’s current priorities and key activities, including the Capital Strategies program, craft training, infrastructure funding legislation, multiemployer pension plans, and owner community engagement.

Employers Should Prepare Now to Avoid Federal Enforcement Action

Union representation in the construction industry (covering all occupations) rose very slightly in 2017, from 14.6 percent to 14.7 percent, according to an annual report recently issued by the Bureau of Labor Statistics (“BLS”). Union membership in the industry similarly increased over the year, from 13.9 percent to 14 percent. The total number of workers in the industry rose from 7,488,000 to 7,844,000.

51����’s 2018 Construction HR & Training Professionals Conference and Federal Construction HR Workshop will be held October 10-12, 2018, in Fort Worth, TX. The conference will offer unique opportunities for HR, training, and workforce development professionals in the construction industry. For training professionals, the conference will offer sessions related to the most cutting-edge techniques currently in the industry and envisioned for the future in training, education and workforce development. For HR professionals, the conference will help attendees stay up to date and compliant with employment laws and best practices. Some sessions will be of interest to both HR and training professionals alike.