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Offshore Wind and the US Inflation Reduction Act

Posted by National Alliance for Fair Contracting on

Mayer Brown | 8/19/22
Authors – Amanda L. Rosenberg, Lauren A. Bachtel and Daniel T. Kiely

The Inflation Reduction Act of 2022 (IRA), which was signed into law by President Joe Biden on August 16, 2022, has the potential to shape offshore wind development for the foreseeable future. Among other things, the IRA modifies the investment tax credit requirements for offshore wind projects, ties offshore wind leasing to offshore oil and gas leasing while also opening new areas for potential offshore wind development, and appropriates additional funds for the planning and development of interregional electricity transmission and transmission of electricity generated by offshore wind.

Tax Credits

There are now more onerous requirements for offshore wind projects to qualify for investment tax credits (ITCs) at the full rate but a renewed opportunity to claim production tax credits (PTCs).

Previously, offshore wind projects under construction by the end of 2025 qualified for a 30% ITC but were ineligible for PTCs at the full rate unless they were under construction by the end of 2016. Wind projects under construction between 2017 and 2021 qualified for PTCs at a reduced rate. Most offshore wind projects are expected to claim the ITC given the high capital costs of constructing such projects.

Now, offshore wind projects under construction by the end of 2024 are eligible for a reduced base credit (6% ITC or 0.3 cent PTCs, adjusted for inflation) that is subject to increase if certain criteria are met. In order to be eligible for the full ITC or PTCs, offshore wind projects must meet certain prevailing wage and apprenticeship requirements or else be under construction no later than 60 days after the Treasury secretary issues guidance on the prevailing wage and apprenticeship requirements.

Prevailing wage requirement: A taxpayer, as well as its contractors and subcontractors, must pay prevailing wages to laborers and mechanics in the construction of the facility and, during the first five (in the case of ITC projects) or 10 (in the case of PTC projects) years of operation after the facility is placed in service, the alteration and repair of the facility. Prevailing wages are determined by the secretary of Labor. Taxpayers have the ability to correct a shortfall in wages by paying to the laborer or mechanic the difference between the prevailing wage amount and what the laborer or mechanic was actually paid plus interest and a penalty to Treasury. The amount owed to the laborer or mechanic for a shortfall is multiplied by three and the penalty is higher, if there was “intentional disregard” of the prevailing wage requirement.

Apprenticeship requirement: A certain percentage of the total labor hours for the construction, alteration or repair work with respect to the facility (including work by contractors or subcontractors) must be performed by qualified apprentices. The percentage is 10% for projects under construction before 2023, 12.5% for projects under construction in 2023, and 15% for projects under construction after 2023. A “qualified apprentice” is an apprentice employed by the taxpayer or its contractors or subcontractors and who participates in certain registered apprenticeship programs. Additionally, any taxpayer, contractor or subcontractor who employs four or more individuals to perform construction, alteration or repair work with respect to the facility must employ at least one qualified apprentice. There is an exception to the apprenticeship requirement if (i) the taxpayer requested qualified apprentices from a program and either the request was denied or there was no response from the apprenticeship program within five days or (ii) the taxpayer otherwise pays a penalty to Treasury for failing to meet the labor hours and minimum participation requirements. The penalty is multiplied by 10 if the taxpayer intentionally disregarded the apprenticeship requirement.

Practical considerations: For wind projects, the determination of whether the prevailing wage requirement and apprenticeship requirements are satisfied is made on a “qualified facility” basis. The IRS generally considers each turbine, pad and tower a separate facility. It is unclear how the requirements will apply to the balance of the wind project. Another consideration is whether the start of construction rules that have been used for qualification purposes over the last nine years, including the “single project” rule, will apply for purposes of determining whether a project was under construction in time to avoid having to meet the prevailing wage and apprenticeship requirements. Recordkeeping will be critical in deals claiming the full tax credit rates. Investors are likely to ask sponsors to make representations that the prevailing wage and apprenticeship requirements are met, if applicable. Beginning of construction analysis will be important for projects looking to avoid having to meet the requirements. Sponsors will need to coordinate with contractors to ensure the requirements are met and may attempt to push these risks on to contractors. It is worth noting that the start of construction deadline for claiming an ITC for an offshore wind project was pulled forward by one year, but projects under construction in 2025 or later may be eligible for a technology-neutral ITC or PTCs as discussed below.

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FACT SHEET: The Inflation Reduction Act Supports Workers and Families

Posted by National Alliance for Fair Contracting on

The White House Briefing Room
8-19-22

By signing the Inflation Reduction Act, President Biden is delivering on his promise to build an economy that works for working families. President Biden is the most pro-worker, pro-union President in history, and the Inflation Reduction Act builds on that legacy. President Biden and Congressional Democrats beat back special interests to pass this historic law that lowers costs for families, creates good-paying jobs for workers, and grows the economy from the bottom up and the middle out.

The Inflation Reduction Act lowers prescription drug costs, health care costs, and energy costs. It’s the most aggressive action on tackling the climate crisis in American history, which will lift up American workers and create good-paying, union jobs across the country. It’ll lower the deficit and ask the ultra-wealthy and corporations to pay their fair share. And no one making under $400,000 per year will pay a penny more in taxes.

CREATE CLEAN ENERGY JOBS

The Inflation Reduction Act creates good-paying union jobs that will help reduce emissions across every sector of our economy. As President Biden promised when running for president, the law includes some of the strongest labor protections and incentives ever attached to clean energy tax credit programs. It will:

  • Incentivize prevailing wages. The expanded tax credits for energy efficient commercial buildings, new energy efficient homes, and electric vehicle (EV) charging infrastructure will include bonus credits for businesses that pay prevailing wages and hire registered apprentices, ensuring local wages are not undercut by low-road contractors.
  • Stop companies from ripping off workers. It will penalize companies that promise to pay prevailing wages but don’t follow through, and workers who are owed prevailing wages will receive the difference, plus interest.
  • Make it in America. For the first time ever, the Inflation Reduction Act establishes Make it in America provisions for the use of American-made equipment for clean energy production. The law provides expanded clean energy tax credits for wind, solar, nuclear, clean hydrogen, clean fuels, and carbon capture, including bonus credits for businesses that pay workers a prevailing wage and use registered apprenticeship programs.

…

REVITALIZE AMERICAN MANFACUTURING

President Biden made a promise to re-energize American manufacturing, and he kept his promise. The President already has the strongest record of growing manufacturing jobs in modern history, and this law invests in American workers and industry. The Inflation Reduction Act will:

  • Build American clean energy supply chains, by incentivizing domestic production in clean energy technologies like solar, wind, carbon capture, and clean hydrogen.
  • Support American workers with targeted tax incentives aimed at manufacturing U.S.-sourced products such as batteries, solar, and offshore wind components, and technologies for carbon capture systems.
  • Strengthen America’s manufacturing base. The Inflation Reduction promotes domestic sourcing and American jobs. For example, clean energy tax credits are increased if the amount of American steel used in wind projects meets the domestic content threshold, and bonus credits apply to employers who use of prevailing wages and apprenticeships, ensuring that federal tax policy supports good-paying, high-skilled jobs.
  • Create good-paying union jobs in energy communities. Clean energy tax credits will be increased by 10% if the clean energy projects are established in communities that have previously relied upon the extraction, processing, transport, or storage of coal, oil, or natural gas as a significant source of employment, creating jobs and economic development in the communities that have powered America for generations.

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L&I Partners With U.S. Department Of Labor To Coordinate Labor Law Enforcement In Pennsylvania

Posted by National Alliance for Fair Contracting on

Pennsylvania Pressroom
8/19/22

​Harrisburg, PA – Department of Labor & Industry (L&I) Secretary Jennifer Berrier today announced a Memorandum of Understanding (MOU) between L&I and the U.S. Department of Labor’s Wage and Hour Division (DOL) to share information regarding violations of labor and workers’ compensation laws that fall under the investigation purview of both departments.

“Our partnership with the federal Department of Labor extends greater protections for Pennsylvania’s workers and ensures more robust compliance assistance for employers,” Berrier said. “Sharing information and resources between federal and state agencies charged with enforcing similar laws allows us to better achieve our joint mission of protecting Pennsylvania workers effectively and efficiently.”

Created due to the overlap in some of the services that the DOL administers, and laws enforced by L&I’s Bureau of Labor Law Compliance and Bureau of Workers’ Compensation, the MOU establishes a five-year agreement, allowing DOL and L&I to partner where applicable. The agreement allows the departments to, among other things, perform joint investigations throughout the commonwealth, share training materials, assist employers and employees with compliance assistance information, coordinate enforcement activities, and suggest referrals for violations.

“We look forward to working with Pennsylvania Labor & Industry as our partner. Our combined efforts will enhance our own resources and ensure increased compliance by employers throughout the commonwealth,” said DOL’s Northeast Wage and Hour Division Regional Administrator Mark Watson. “Our agencies share a common purpose of ensuring the proper working conditions for workers in Pennsylvania. Our working together and sharing resources to achieve efficiency in that common purpose makes sense.”

The Department of Labor & Industry enforces 14 labor laws, including the Construction Workplace Misclassification Act (Act 72), Prevailing Wage Act, Child Labor Act, Minimum Wage Act, Wage Payment Collection Law, Prohibition of Excessive Overtime in Health Care Act (Act 102), Medical Pay Law, Apprenticeship and Training Act, Equal Pay Law, Industrial Homework Law, Personnel File Inspection Act, Seasonal Farm Labor Act, Construction Industry Employee Verification Act, and Workers’ Compensation Act, and the regulations expressed for each.

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Wage thieves will soon face criminal prosecution in Multnomah County

Posted by National Alliance for Fair Contracting on

Northwest Labor Press – By Colin Staub
Aug 17, 2022

Employers who intentionally withhold wages totaling more than $10,000 could be taken to criminal court under an agreement in development between state labor regulators and the Multnomah County District Attorney’s office.

Oregon’s Bureau of Labor & Industries (BOLI) signed a memorandum of understanding with District Attorney Mike Schmidt on March 7. It’s not binding and isn’t legally enforceable, but it indicates both parties intend to enhance enforcement of wage and hour laws.

No cases have been referred for prosecution yet. But BOLI Wage & Hour Administrator Laura van Enckevort said she hopes to have at least a few cases identified for referral to the DA’s office in September, and definitely before the end of the year.

Employers could face felony charges

Schmidt says he was interested in tackling wage theft even before voters elected him in May 2020. He draws a connection between wage theft and public safety.

“When workers aren’t paid and they can’t bring home a paycheck, then that hits food on the table, the electric bill, the school supplies, that hits everything, and that can destabilize entire communities,” Schmidt said. “When I think about public safety, the thing that I think makes us the most safe is when communities are healthy and thriving. If you look out across Multnomah County, the places with the greatest economic disparity are the places we see the most criminal challenges.”

Schmidt says he’s heard several first-hand accounts from victims of wage theft since entering office. In one case, a man came to Schmidt to advocate on behalf of a group of Portland laborers who weren’t being paid by a contractor.

“They got to the first round of checks, and they bounced,” Schmidt said. “The second round of checks, and they bounced. They got to the third round, and he promised a bag full of cash. And then he showed up with an empty bag. He kept stringing them along until they finally walked off the job.”

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US Department of Labor Offers Prevailing Wage Compliance Seminars for Federal Contractors, Contracting Agencies, Unions, Workers

Posted by National Alliance for Fair Contracting on

Agency: Wage and Hour Division
Date: August 15, 2022
Release Number: 22-1657-NA

WASHINGTON – The U.S. Department of Labor is offering online compliance seminars for contracting agencies, contractors, unions, workers and other stakeholders on the requirements governing payment of prevailing wages on federally funded construction and service contracts.

Presented by the department’s Wage and Hour Division, the seminars are part of the division’s ongoing effort to increase awareness and improve compliance with federal prevailing wage requirements.

The seminars will include video training on many Davis-Bacon and Related Acts and McNamara-O’Hara Service Contract Act topics that participants can view on demand. In addition to recorded videos, the division will offers live, online question and answer sessions on DBA and SCA compliance from 1:30 to 3:30 p.m. EDT.

The live Davis-Bacon Act compliance session is scheduled for Sept. 13 and the live session on Service Contract Act compliance is scheduled for Sept. 14.

“With the Biden-Harris administration’s unprecedented investments in the nation’s infrastructure, the Wage and Hour Division wants to ensure that employers understand the importance of compliance with the Davis-Bacon and Service Contract acts and other laws we enforce,” said Principal Deputy Wage and Hour Administrator Jessica Looman. “Our efforts are intended to help create good jobs and support responsible employers by providing useful opportunities for contractors, workers and contracting agencies to understand the laws that govern wages and benefits on federal contracts better.”

While seminar attendance is free, registration is required. Register to attend the Prevailing Wage seminar.

Additional information – including links to video trainings and dates for upcoming Q&A sessions, will be provided to registrants soon.

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BY THE NUMBERS: The Inflation Reduction Act

Posted by National Alliance for Fair Contracting on

The White House Briefing Room
August 15, 2022

The Inflation Reduction Act will lower costs for families, combat the climate crisis, reduce the deficit, and finally ask the largest corporations to pay their fair share. President Biden and Congressional Democrats have worked together to deliver a historic legislative achievement that defeats special interests, delivers for American families, and grows the economy from the bottom up and middle out.

Here’s how the Inflation Reduction Act impacts Americans by the numbers:

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CLEAN ENERGY

Lowering Energy Costs

  • Families that take advantage of clean energy and electric vehicle tax credits will save more than $1,000 per year.
  • $14,000 in direct consumer rebates for families to buy heat pumps or other energy efficient home appliances, saving families at least $350 per year.
  • 7.5 million more families will be able install solar on their roofs with a 30% tax credit, saving families $9,000 over the life of the system or at least $300 per year.
  • Up to $7,500 in tax credits for new electric vehicles and $4,000 for used electric vehicles, helping families save $950 per year.
    Putting America on track to meet President Biden’s climate goals, which will save every family an average of $500 per year on their energy costs.

Building a Clean Energy Economy

  • Power homes, businesses, and communities with much more clean energy by 2030, including:
    • 950 million solar panels
    • 120,000 wind turbines
    • 2,300 grid-scale battery plants
  • Advance cost-saving clean energy projects at rural electric cooperatives serving 42 million people.
  • Strengthen climate resilience and protect nearly 2 million acres of national forests.
  • Creating millions of good-paying jobs making clean energy in America.

Reducing Harmful Pollution

  • Reduce greenhouse gas emissions by about 1 gigaton in 2030, or a billion metric tons – 10 times more climate impact than any other single piece of legislation ever enacted.
  • Deploy clean energy and reduce particle pollution from fossil fuels to avoid up to 3,900 premature deaths and up to 100,000 asthma attacks annually by 2030.

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Minneapolis Construction Workers Fight Chronic Wage Theft

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BY CALEB BRENNAN | AUGUST 15, 2022

The Midwest building industry is notorious for cheating paychecks.

… Bravo, the executive director of the West Side Community Organization, alongside a coalition of workers’ rights advocates, union organizers, and general laborers, was there to protest poor working conditions within the construction industry. Their caravan would soon make its way into the heart of downtown Minneapolis to protest other build sites where blocky, five-on-one condominiums were under construction.

Bravo accused the firm, alongside a slew of other Minnesota real estate companies, of ignoring chronic concerns over safety, sexual harassment—and, most urgently, rampant wage theft.

“That was five decades ago,” Bravo continued. “And we have families today still facing wage theft while the construction industry is booming with millionaires and multimillionaires—all at the expense of exploiting the families that are working for them.”

Bravo was not exaggerating. The construction industry in the U.S. runs on wage theft. One study found that in Illinois, Wisconsin, and Minnesota, almost 1 out of every 5 workers suffer from payroll fraud. Another study focused specifically on Minnesota construction found a rate of 23 percent.

“One study found that in Illinois, Wisconsin, and Minnesota, almost 1 out of every 5 workers suffer from payroll fraud.

Minimum and overtime wage violations, specious deductions from paychecks, and misclassifying workers are all common tactics that Rust Belt construction firms and their subcontractors use to cut back on labor costs. Despite the brief impact of the COVID-19 lockdown, residential construction revenue in the U.S. is continuing on an upward trend—the size of the North American construction sector is set to reach $2.4 trillion by 2030.

In June of this year alone, domestic construction spending totaled $1.76 trillion.

This thievery, according to the Midwest Economic Policy Institute, costs taxpayers in these states $362 million each year. Similar levels are found on a national level, where everywhere from San Diego to Washington, D.C., sees a persistent flow of complaints and dollars extracted from workers.

The industry’s labor force is chronically unorganized, undocumented, and obstructed from legal recourse. As such, subcontractors can exploit atomized workers while their hiring firms can claim they had no knowledge of the conduct, leaving their precarious workforce economically and legally stranded.

Without political power or judicial leverage, atomized construction workers often have no means for resisting this subtle form of robbery.

That’s how Daniel Sanchez felt when he realized he had had over $100,000 worth of wages stolen from him over the course of two years. An immigrant laborer from Minnesota who has worked for both large national property development firms like R.J Ryan Construction and smaller, local ventures like Doran Companies, Sanchez has spent the past ten years cleaning and maintaining construction sites.

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Investigation Recovers $246k In Back Wages for 306 Painters, Drywall Workers Denied Overtime by Misclassification as Independent Contractors

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Agency: Wage and Hour Division
Date: August 4, 2022
Release Number: 22-1562-DAL

​​​​​​​Department of Labor finds errant pay practices hurt workers jointly employed

NEW ORLEANS – The U.S. Department of Labor has found that the wages of hundreds of painters and drywall workers employed by a Louisiana contractor on construction projects, including work at New Orleans’ Superdome, were tackled for a loss when their employer misclassified the workers as independent contractors, a common industry violation.

Investigators with the department’s Wage and Hour Division found that PL Construction Services misclassified its workers as independent contractors. Many of the employees worked on projects involving Lanehart Commercial Painting – operating as Lanehart – including work at the Superdome. PL Construction Service paid the misclassified workers straight-time rates for all hours, including those over 40 in a workweek which violated the Fair Labor Standards Act’s overtime regulations. They also failed to maintain complete and accurate records of hours their employees worked, another FLSA violation.

The division determined that during the investigation period, a joint employment relationship existed between PL Construction Services and Lanehart for workers employed on Lanehart projects. Among other factors, they found the following conditions:

PL Construction Services employees worked almost exclusively for Lanehart.
At work sites, Lanehart supervised PL Construction Services’ workers, determined the number of workers needed and when, and kept records of hours PL Construction Services’ employees worked.
PL workers’ labor was essential to Lanehart’s operations and occurred on Lanehart’s projects.
The investigation led to the recovery of $246,570 in overtime back wages for 306 employees. Lanehart paid $199,342 to 243 employees for which the division found them jointly liable. PL Construction Services paid the remaining balance of $47,228 to 76 employees.

PL Construction Services LLC is based in St. Rose, and Lanehart Inc. is based in Baton Rouge.

“Too often we find workers denied wage protections such as the right to overtime pay and other benefits – including unemployment insurance, workers’ compensation and health insurance – by employers who misclassify them as independent contractors,” said Wage and Hour District Director Troy Mouton in New Orleans. “Our investigation shows the costly consequences employers face when they or their subcontractors fail to comply with the law. When we determine a joint employment relationship exists, the Wage and Hour Division will hold all responsible employers accountable for the violations.”

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US Department of Labor Finds Honolulu Contractor Failed to Pay Correct Wages, Fringe Benefits to 46 Employees on Federally Funded Projects

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Agency: Wage and Hour Division
Date: August 2, 2022
Release Number: 22-1586-SAN

Investigation recovers $156K in back wages, benefits for Tunista Services LLC’s workers

HONOLULU – A U.S. Department of Labor investigation has recovered $156,837 in back wages from a Honolulu contractor who paid 46 workers lower wages than the law allows for the type of work they performed under federal contracts awarded by U.S. Marine Corps, Navy, Army and Coast Guard in Hawaii.

The department’s Wage and Hour Division determined that Tunista Services LLC failed to pay truck drivers, material handling laborers, warehouse specialists, forklift operators, service order dispatchers, janitors and other workers the correct wage rates set by federal law for their services. Instead, the employer paid several workers lower hourly rates than required for their occupations, in violation of the McNamara-O’Hara Service Contract Act.

Tunista Services also violated the provisions in the act – which governs employee pay standards for contractors and subcontractors on federally funded contracts – when they failed to provide the required health benefits, sick leave pay, holiday pay and vacation pay.

In addition, the employer violated the Contract Work Hours and Safety Standards Act, which requires overtime pay for hours over 40 in a workweek. The employer based its overtime calculations on the lower, incorrect wage rate and failed to pay the full overtime due.

The $156,837 recovery includes $84,995 for paying incorrect occupational wages, $56,596 for underpayment of fringe benefits, $14,791 reimbursement for unpaid sick leave and $455 in overtime pay for the affected workers.

“Federal contractors who fail to pay correct wages and fringe benefits shortchange workers, reduce their labor costs illegally and gain unfair advantage over their law-abiding competitors,” said Wage and Hour Division District Director Terence Trotter in Honolulu. “We strongly encourage all federal contractors to review their own pay practices and ensure they comply with the law.”

Learn more about the division, including its search tool to learn if you are owed back wages collected by the division. For confidential compliance assistance about the Service Contract Act and the Contract Work Hours and Safety Standards Act, call the agency’s toll-free helpline at 866-4US-WAGE (487-9243). Help ensure hours worked and pay are accurate by downloading the department’s Android and iOS Timesheet App for free.

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US Department of Labor Recovers $178k in Back Wages for 27 Workers of Houston Employer Who Misclassified Them as Independent Contractors

Posted by National Alliance for Fair Contracting on

Agency: Wage and Hour Division
Date: July 28, 2022
Release Number: 22-1438-DAL

M&M’s Welding & Fabricating failed to pay workers overtime

HOUSTON – An investigation by the U.S. Department of Labor has recovered $178,358 in overtime back wages for 27 employees of a Houston welding and fabrication company that misclassified them as independent contractors and denied them their full wages and benefits.

The department’s Wage and Hour Division found M&M’s Welding & Fabricating – operating as M&M’s Welding – misclassified the workers who specialize in the erection of structural steel buildings. As a result, the employer failed to pay the overtime premium for hours over 40 in a workweek and paid only straight time for all hours worked.

“M&M’s Welding & Fabricating exploited vulnerable workers by misclassifying and denying them the overtime pay they earned,” explained Wage and Hour Division District Director Robin Mallett in Houston. “Employers who do this harm workers and their families who depend on their earnings and benefits. They also gain an unfair advantage over their business competitors who abide by the law. The Wage and Hour Division will hold these employers accountable.”

The Wage and Hour Division is responsible for determining whether employees have been misclassified as independent contractors and have been denied critical benefits and labor standards protections. In fiscal year 2021, the division identified more than $36 million in back wages owed to about 21,000 construction industry workers. In its investigations, the division commonly finds violations related to employers failing to pay overtime when required, misclassifying workers as independent contractors, and not paying them for time spent on work-related travel, or pre- and post-shift work.

The Bureau of Labor Statistics projects construction industry employment to grow at a rate of 6 percent by 2030, with a gain of approximately 400,000 jobs. Employers who ensure their workers are paid their rightful wages and benefits will be best positioned to retain and recruit skilled workers.

Learn more about the Wage and Hour Division, including a search tool to use if you think you may be owed back wages collected by the division. The division protects workers regardless of immigration status and can communicate with workers in more than 200 languages.

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