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City council passes ordinances to protect workers’ rights

Posted by National Alliance for Fair Contracting on

by Malea Martin / Mountain View Voice
Uploaded: Wed, Sep 14, 2022

Employees in Mountain View will soon have increased labor protections thanks to a pair of ordinances passed by the city council Tuesday night – though some members of the public raised concerns that the ordinances don’t go far enough to protect workers on the city’s own projects.

The Wage Theft and Responsible Construction ordinances first came to the council in October 2021 as a study session item. Nearly a year later, the council had its first reading of the ordinances at its Aug. 30 meeting before passing the ordinances with a few adjustments at its Sept. 13 meeting.

The purpose of the ordinances is “to help ensure accountability and compliance with existing state wage and hour laws, enhance the protection of workers’ rights, and support the city’s existing minimum wage ordinance,” said Christina Gilmore, assistant to the city manager, at the Aug. 30 meeting.

In the case of the Wage Theft Ordinance, staff proposed that the business license process be used to connect with Mountain View employers and seek compliance with state wage and hour laws, according to the council report from the Aug. 30 meeting.

“As part of this process, all businesses would be required to submit an affidavit attesting that the business does not have any unsatisfied labor law judgments or orders,” the report said, and the city would investigate potentially false attestations on a complaint basis.

Similarly, for the Responsible Construction Ordinance, staff in 2021 proposed using the city’s building permit process to achieve wage protections for workers employed in construction projects. Owners, contractors and subcontractors on projects at and above 15,000 square feet would be required to submit a Pay Transparency Acknowledgement form at the beginning of the permit application process, and then a second Pay Attestation form before reaching the end of the project.

After the 2021 study session, staff made a few adjustments before bringing the ordinances back to council for the first reading on Aug. 30. For instance, businesses with no employees would be exempt from the wage theft ordinance requirements. Staff also incorporated stronger consequences for non-compliance with the Responsible Construction ordinance, such as the certificate of occupancy being withheld for failure to submit the form or in the case of a sustained complaint of wage theft.

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Illinois accuses Bridgeview construction company of stealing wages from union carpenters

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Chicago Sun Times – By Mitch Dudek Sept 2, 2022

Drive Construction allegedly funneled payments to carpenters through sham subcontractors to pay less than what the state’s overtime and prevailing wage laws require

A Bridgeview-based construction company is accused of wage theft and using an elaborate scheme to underpay dozens of union carpenters, according to a lawsuit filed by Illinois Attorney General Kwame Raoul’s office.

Between 2015 and 2020, Drive Construction Inc. obtained contracts for public works projects in the Chicago area, such as schools and public housing apartments, worth nearly $40 million, according to the lawsuit. The contracts required Drive to pay its carpenters, who are represented by the Mid-America Carpenters Regional Council, Illinois-mandated prevailing wages.

But Drive funneled payments to carpenters through sham subcontractors to pay the carpenters less than what the state’s overtime and prevailing wage laws require and to dodge the cost of other legally required benefits and protections, according to the lawsuit filed Thursday in Cook County Circuit Court.

“Drive passed money through two layers of sham subcontractors before using its construction foremen to distribute those payments to workers on Drive’s projects as a flat, per-week payment,” the suit alleges. “This multitiered funneling of wage payments enabled Drive to make it look like the workers were not Drive’s employees — when, in fact and by law, they were.”

Payments were typically made in cash or by money order to avoid traceability and did not reflect the overtime and prevailing wage rates that they should have, according to the suit.

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‘Stop Work Order’ Signs Posted On Controversial Building Trades High School Construction Site

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By MARK J. BONAMO AND TOM WIEDMANN
Published – September 8, 2022

NEWARK, NJ — State Department of Labor and Workforce Development officials have posted “Stop-Work Order” signs on the construction site of the new Newark High School of Architecture & Interior Design.

Work at the site appeared to come to a halt Thursday, except for some cleanup work activity. DOL officials said that stop-work orders were issued to the general contractor and subcontractor performing work at 155 Jefferson St., and to the developer of the property, slated to be the site of the district’s Newark High School of Architecture & Design.

Investigators from the DOL’s Division of Wage and Hour and Contract Compliance delivered the stop-work notices to a New York-based general contractor Townhouse Builders Inc., subcontractor Dimension Contractors LLC of Newark, and developer Summit Assets.

In addition, officials said the stop-work orders were issued for workers on-site not being paid the state prevailing wage rate, neither the developer – which had workers at the site – nor the subcontractor is registered to perform public work in New Jersey. Summit Assets was also cited for misclassifying workers as independent contractors. Townhouse Builders was cited for employing non-registered contractors on a prevailing wage job site.

“Our strongest enforcement tool is to stop work immediately on a public construction site when workplace violations are egregious and readily apparent,” said Labor Commissioner Robert Asaro-Angelo. “Performing public work is a privilege, not a right, and we will not tolerate abuses to workers or the law.” …

TAPinto Newark first reported that Laborers Eastern Region Organizing Fund, or LEROF—the organizing arm of Laborers’ International Union of North America (LIUNA)—filed a complaint with the state Department of Labor and Workforce Development regarding the project, alleging laborers are not being paid prevailing wages as required by law and were working in unsafe conditions.

LEROF Director David Johnson commended the DOL’s decision to issue the stop-work orders.

“We were appalled by what happened [at the site],” Johnson told TAPinto Newark. “We are a union, and we are about educating non-union laborers about their rights. We’re very pleased that after these workers were brought before the Department of Labor to give testimony. It seemed like today, the DOL believed what the workers said, and they acted today.”

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Attorney General’s annual Labor Day Report: More than $11.8 million in restitution and penalties against employers on behalf of workers in Mass.

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MassLive.com – Published: Sep. 05, 2022
By Tristan Smith

Attorney General Maura Healey released her seventh annual Labor Day Report, a summary of the office’s efforts to combat wage theft and other forms of worker exploitation in Massachusetts. The report showed that during fiscal 2022 the office assessed more than $11.8 million in restitution and penalties against employers on behalf of commonwealth workers.

“This Labor Day, we honor the resiliency of Massachusetts workers whose perseverance throughout the COVID-19 pandemic has kept our communities and our economy going,” said AG Healey. “One of my top priorities is ensuring that workers from every industry are paid the wages they are entitled to and that they have access to the hard-fought workplace rights that our laws provide. We will continue to advocate for the rights of workers at the state and national level.”

The Labor Day Report details the actions of the AG’s Fair Labor Division in fiscal 2022, which runs from July 1, 2021 to June 30, 2022. During this fiscal year, the Fair Labor Division ordered employers to pay $7.5 million in restitution to employees and $4.2 million in penalties to the General Fund, according to the report.

More than 19,300 workers reportedly benefited from the AG’s enforcement actions.

In fiscal 2022, the Fair Labor Division continued its focus on combatting wage theft in the construction industry – where workers are often vulnerable to exploitation on the job, according to the report. In the construction industry alone, the division assessed more than $2.9 million in penalties and restitution and issued 217 citations against employers. In one case, the AG’s office cited a Wareham company and its owners for more than $1.2 million, including restitution for 41 employees, for prevailing wage violations and failing to submit certified payroll records, according to the report.

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US Department of Labor Spotlights Employer Readiness, New Resources, Rights of Workers During Disaster Preparedness Month

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Agency: Wage and Hour Division
Date: September 6, 2022
Release Number: 22-1745-BOS

Wage and Hour Division hosts preparedness webinar Sept. 8, 2022

BOSTON – With menacing weather and severe storms a danger in late summer and fall, the U.S. Department of Labor urges workers and employers who clear debris, repair homes or perform other types of disaster recovery to use its Wage and Hour Division’s online resources, including a new Natural Disaster Compliance Assistance Toolkit, to ensure they are familiar with federal laws governing wages, hours of work and pay practices.

Even when disaster strikes, worker protections apply. Employers must ensure they can maintain accurate records and pay wages as due. Workers are particularly vulnerable during times of crisis and the failure to comply with federal labor laws harms them and their families.

“The U.S. Department of Labor works tirelessly to ensure that workers who respond in times of crisis, to help communities recover from devastating storms, are paid all of their legally earned wages and benefits,” explained Wage and Hour Regional Administrator Mark Watson in Philadelphia. “Additionally, we stand ready to equip employers with the information and guidance they need to prevent violations, which are often costly.”

From October 2017 to June 2022, the department’s Wage and Hour Division conducted more than 900 investigations related to recovery from natural disasters. Those cases yielded more than $62 million in wages recovered for more than 45,000 workers. During that same time, the division hosted more than 1,200 outreach events for disaster recovery employers, employees and stakeholders, totaling more than 75,000 participants.

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Attorney General Raoul Sues Construction Company over Complex Scheme to Avoid Paying Fair Wages and Taxes

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Office of the Attorney General – State of Illinois
Sept. 2, 2022

Raoul Also Issues 2022 Labor Day Report Highlighting Actions to Protect Illinois Workers

Chicago — Heading into the Labor Day holiday, Attorney General Kwame Raoul yesterday filed a lawsuit against a Bridgeview, Illinois-based construction company over an elaborate scheme to keep its employees off payroll and avoid paying tax withholdings required by law. The Attorney General’s office filed the lawsuit against Drive Construction Inc., its principal officers, and a complex web of entities and individuals for a years-long conspiracy to pay millions of dollars of wages in cash, and skirt laws intended to protect Illinois workers and ensure fair wages.

Drive Construction (Drive), which specializes in carpentry, plumbing and masonry, obtains public works projects worth several millions of dollars each year. Raoul’s lawsuit alleges Drive misclassified workers to avoid paying employees fair rates of pay for the hours they worked and to skirt its obligations to pay unemployment insurance contributions to the Illinois Department of Employment Security. Raoul alleges Drive violated Illinois’ Minimum Wage Law, the Illinois Prevailing Wage Act and the Illinois Employee Classification Act.

“Misclassifying employees as independent contractors deprives workers of their right to be paid fairly and to be covered by workers compensation insurance in the event of workplace injuries,” Raoul said. “Employers that gain a competitive advantage by paying workers off the books and in violation of Illinois law create an uneven and unfair playing field for law-abiding businesses. I am committed to holding businesses – large and small – accountable for violating laws that safeguard workers and support law-abiding businesses in Illinois.”

Raoul’s lawsuit follows an investigation based on information provided by the Mid-America Carpenters Regional Council, which has a collective bargaining agreement with Drive.

“The Mid-America Carpenters Regional Council worked closely with Attorney General Raoul’s office to shed light on this prime example of wage theft perpetrated against exploited workers,” said Gary Perinar, Executive Secretary-Treasurer of the Mid-America Carpenters Regional Council. “The Carpenters Union aggressively pursues wage theft cases because they hurt working families, they hurt Illinois taxpayers, and they hurt our signatory contractors who play by the rules and are at a major disadvantage against unscrupulous contractors who lowball bids by cheating the system. Earlier this year we were proud to introduce wage theft legislation that was signed into law which now holds cheating contractors accountable. We will continue our fight for working families across Illinois.”

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The Role of State Attorneys General in Protecting Workers’ Rights

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American Constitution Society – Sept. 4, 2022

Terri Gerstein – Director of the State and Local Enforcement Project, Harvard Labor and Worklife Program. Senior Fellow, Economic Policy Institute.

This is the sixth piece in an eight-month long blog series aimed at highlighting state attorneys general and their work. You can find additional resources, news, and information about the State Attorney General Project here.

State Attorneys General (AGs) are playing an increasingly visible and important role in relation to workers’ rights. Although historically AGs have not been deeply involved in labor matters, since 2015, AG action in this area has mushroomed: ten states have dedicated labor units of various kinds, several jurisdictions have passed legislation granting state AGs expanded jurisdiction allowing them to address labor violations, and many AGs have brought cases to enforce workers’ basic rights.

As the midterms approach, with AG elections occurring in 30 states plus the District of Columbia, it is important to understand not only what AGs do in general, but also what they are doing and can do to protect our country’s workers.

Role of AGs

AGs are the top legal officers in their states. Offices vary considerably in terms of resources and jurisdiction, but some common elements are generally present. They represent state agencies in court and in appeals. AGs play a public advocacy role, enforcing the law in various ways to protect the people of their states, most commonly in areas like consumer and civil rights. Many AG offices also have criminal jurisdiction: a few are the sole criminal prosecutors in their states, like Delaware and Rhode Island, while most have jurisdiction in specific circumstances, such as in particular types of cases or upon request by a district attorney. AGs also issue opinion letters that provide authoritative guidance. AGs have also increasingly become involved in federal matters, suing the federal government (or weighing in to support it) and submitting comments regarding proposed rules. AGs also often propose or support legislation in their states, working together with state legislators. Finally, AGs are highly visible leaders, and they exercise soft power in various ways: authoring op-eds, issuing reports, and more.

AG Involvement in Workers’ Rights Matters

State AGs have pursued employers for wage theft, misclassifying workers as independent contractors instead of as employees, endangering workers, and otherwise violating core workplace protections. AGs have filed civil lawsuits, brought criminal prosecutions, and achieved settlements that collectively recovered tens of millions of dollars for working people. They’ve freed many thousands of workers from non-compete and no-poach agreements, stopped companies from stealing workers’ tips, and achieved other forms of injunctive relief. And they’ve sued to stop federal rollbacks of workers’ rights. Here are some highlights of AG action in the year since Labor Day 2021 (this list is not exhaustive):

Fighting misclassification of workers as independent contractors instead of as employees: The Illinois AG on Friday sued a construction company for violations of the state’s minimum wage, prevailing wage, and employee classification laws. The DC AG filed several misclassification lawsuits, including a drywall construction contractor (ultimately settled for over $1 million), an electrical contractor, a company (Arise Virtual Solutions) that provides customer service to top corporations like Disney and Airbnb; and Jan-Pro, a national janitorial contractor.

Criminal prosecution: The Virginia AGs office obtained a guilty plea to felony embezzlement charges of a drywall contractor who misclassified workers constructing the state’s General Assembly building as independent contractors instead of as employees. The Maryland AG obtained a guilty plea from a labor broker in the office’s first criminal labor case; a contractor building a state university forced workers to kick back money to him each week. Washington’s AG obtained guilty felony theft pleas from business owners who didn’t pay wage to 24 employees of their house cleaning business.

Rhode Island’s AG obtained a guilty plea in a case involving a janitorial contractor who failed to pay workers and evaded workers’ compensation laws in order to win a public contract on community college campuses. Rhode Island’s AG has been active in bringing criminal prosecutions related to wage theft; for example, an employer was charged with $93K of wage theft in a prevailing wages case involving construction on a school. The Rhode Island AG also led the effort to pass a bill strengthening penalties for wage theft testifying in a legislative hearing about the proposal.

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Going Public With It – OFCCP Publishes Notice Regarding FOIA Request for All Type 2 Consolidated EEO-1 Reports – and Sets September 19 Deadline to Object

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The National Law Review
Monday, August 29, 2022

On August 19, 2022, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) published a Notice in the Federal Register regarding a Freedom of Information Act (“FOIA”) request from Will Evans, a Senior Reporter and Producer with the Center for Investigative Reporting (“CIR”). The FOIA request seeks the disclosure of certain government contractor compliance reports submitted to the Equal Employment Opportunity Commission. The OFCCP is allowing affected contractors to submit objections to the FOIA request if they fear confidential commercial information may be disclosed and ultimately published.

The Scope of the Request
The FOIA request was initially made in January 2019 but has been amended multiple times and now seeks all Type 2 Consolidated EEO-1 Report demographic data submitted by federal contractors and first-tier subcontractors from 2016-2020. The request does not include EEO-1 requests from single-establishment (Type 1) contractors, other EEO-1 reports filed by Type 2 (multi-establishment) contractors or Component 2 reports with compensation data. Type 2 Consolidated EEO-1 Reports are consolidated reports of demographic data for all employees at headquarters as well as all establishments, categorized by race/ethnicity, sex, and job category. OFCCP estimates that nearly 15,000 companies filed reports subject to the FOIA request. A company can use the EEO-1 Online Filing System’s historic data to determine if they filed EEO-1 Reports between 2016 and 2020.

What If I Don’t Want My EEO-1 Reports Made Public?
FOIA grants the public the right to request access to records from any federal agency. However, there are certain exemptions that allow agencies to redact – or entirely withhold – certain requested information. In its Notice, the OFCCP states it believes that the information requested may be protected from disclosure under FOIA Exemption 4 – which protects disclosure of confidential commercial information.

Accordingly, OFCCP is now requesting that any federal contractor who filed a Type 2 Consolidated EEO-1 Report as a federal contractor between 2016 and 2020 and who wishes to object to the disclosure of the information submit an objection to the OFCCP by September 19, 2022.

How Do I Submit an Objection?
Because of the large number of affected companies, OFCCP has established a portal for contractors to submit written objections. While the OFCCP encourages the use of the portal, objections may also be submitted via email to OFCCPSubmitterResponses@dol.gov, or by mailing to “ATTN: FOIA Officer (FRN), Office of Federal Contract Compliance Programs, Division of Management and Administrative Programs, 200 Constitution Avenue NW, Room C3325, Washington, DC 20210. All objections, however submitted, must be received by OFCCP by September 19, 2022.

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New Regulation Proposal Would Require Project Labor Agreements for Federal Construction ‎Projects

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JD Supra | Aug. 25, 2022

On Thursday, August 19, 2022, as mandated by Executive Order 14063, issued by President Biden February 4, the Federal Acquisition Regulatory Council proposed a rule to amend the Federal Acquisition Regulations (FARs) to require that federal contractors and their subcontractors enter into project labor agreements (PLAs) with unions as a condition to receiving federal construction contracts worth $35 million or more. The new regulations, if adopted, would apply to solicitations issued after the effective date of the final regulations issued by the FAR Council. Comments on the proposed regulations are due October 18, 2022, such that, if the proposed regulations are enacted as drafted, federal contractors may begin to see the PLA requirement in new solicitation issued at the end of 2022 or the first quarter of 2023.

As discussed in our prior update on Executive Order 14063, a PLA is a pre-hire collective bargaining agreement between an employer and one or more trade unions that establishes terms and conditions of employment for a specific construction project. Under the current version of FAR 22.505, federal agencies have the discretion to require PLAs on construction contracts by including FAR 52.222-33 in the solicitation. That clause currently states:

Notice of Requirement for Project Labor Agreement (May 2010)

(a) Definitions. “Labor organization” and “project labor agreement,” as used in this provision, are defined in the clause of this solicitation entitled Project Labor Agreement.

(b) Consistent with applicable law, the offeror shall negotiate a project labor agreement with one or more labor organizations for the term of the resulting construction contract.

(c) Consistent with applicable law, the project labor agreement reached pursuant to this provision shall-

(1) Bind the offeror and all subcontractors engaged in construction on the construction project to comply with the project labor agreement;

(2) Allow the offeror and all subcontractors to compete for contracts and subcontracts without regard to whether they are otherwise parties to collective bargaining agreements;

(3) Contain guarantees against strikes, lockouts, and similar job disruptions;

(4) Set forth effective, prompt, and mutually binding procedures for resolving labor disputes arising during the term of the project labor agreement;

(5) Provide other mechanisms for labor-management cooperation on matters of mutual interest and concern, including productivity, quality of work, safety, and health; and

(6) Fully conform to all statutes, regulations, Executive orders, and agency requirements.

(d) Any project labor agreement reached pursuant to this provision does not change the terms of this contract or provide for any price adjustment by the Government.

(e) The offeror shall submit to the Contracting Officer a copy of the project labor agreement with its offer.

Under the proposed rule, federal agencies would be required to include revised 52.222-33 and 52.222-34 FARs in solicitations for construction projects estimated to cost the government $35 million or more. This means that federal contractors working on construction projects costing $35 million or more, would need to enter into PLAs for those projects. Federal agencies will retain their discretion under FAR 22.505 to require PLAs (by including FAR 52.222-33 in the solicitation) for projects below the $35 million mark. For IDIQ (indefinite delivery, indefinite quantity) contracts, only individual task orders will be considered when calculating the size of the contract for purposes of applying the proposed revised 52.222-33 and 52.222-34 FARs. There is no exception for small businesses, such that if a small business receives a construction contract award of $35 million or greater, or is a subcontractor on such an award, the small business may be required to enter into PLAs if the contract award includes the proposed revised 52.222-33 and 52.222-34.

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Inflation Reduction Act Brings Big Changes to Clean Energy Tax Incentives

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JD Supra
August 22, 2022

Over the next decade, the United States, through enactment of the Inflation Reduction Act of 2022 (IRA), is primed to make a $369 billion investment in clean energy and climate change programs. The lion’s share of this investment comes in the form of tax credits (extending or expanding existing tax credits, reinstating expired tax credits, and establishing new tax credits) to incentivize behavior that makes significant progress in reducing greenhouse gas (GHG) emissions (with projections showing a nearly 40% decrease in GHG emissions compared to a 2005 baseline) while at the same time encouraging domestic manufacture of key climate change technologies.

Companies looking to execute projects to take advantage of these tax credits should note two significant differences from how these types of tax credits have been provided in the past.

First, with limited exceptions, most credits are set up with a low “base” credit that can be increased by satisfying certain requirements. For example, the investment tax credit has a “base” credit amount of 6%, which can be increased to 30% if the project meets both a prevailing wages requirement for its laborers, mechanics, contractors, and subcontractors and an apprenticeship labor requirement that a certain percentage of the total labor hours for construction, alteration, or repair work on a project are performed by qualified apprentices. The credit can be increased even further by satisfying a domestic content requirement, locating the facility in an “energy community” (which includes brownfields, areas with a history of significant fossil fuel employment, and properties on which a coal mine or coal-fired electricity generation has been recently located), or locating smaller scale projects in low-income communities or on Indian land. Similarly, some credits contain an enhanced credit for using certain technologies in project execution (e.g., the carbon oxide sequestration tax credit is enhanced for projects using direct air capture).

Second, and a change that is poised to shake up how certain projects are financed and developed, new methods of monetizing tax credits have been added. For developers, the ability to transfer all or a portion of eligible credits to an unrelated third party provided in exchange for cash consideration (which consideration is not included in the transferee’s gross income nor deductible by the transferor) will be fairly significant in how a project is structured (even if projects may still need a tax equity component to monetize accelerated depreciation). The IRA will also help incentivize certain tax-exempt and government entities to execute projects by offering direct payment in lieu of certain tax credits. For-profit entities pursuing clean hydrogen production, carbon capture and sequestration, and domestic advanced manufacturing projects can also elect direct pay in lieu of tax credits for those types of projects. We expect direct payment to drive significant activity towards those types of projects. Ultimately, new ways of monetizing credits will give rise to several new transaction structures.

This update is intended to provide a high level overview of some of the IRA’s tax credit incentives targeting clean energy and climate change. We have also published separate updates regarding the Act’s energy storage incentives and a general overview of IRA incentives.

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