Rules + Regs

Court rules workers won't be compensated for pre-shift waiting

On Nov. 9, 2017, a federal appeals court ruled in favor of an employer that did not compensate construction employees for time spent waiting at a work site for shifts to begin.

Empire Scaffold LLC, Baton Rouge, La., required workers be taken by bus to a refinery, where they would assemble and take down scaffolding. Although the workday started at 7 a.m., workers had to board buses no later than 6:15 a.m. because the trip to the refinery was 20-30 minutes.

The employees said they were required to arrive before the workday began and claimed the time spent waiting for work to start was compensable under the Fair Labor Standards Act and Portal-to-Portal Act. However, the 5th Circuit Court of Appeals overturned part of a lower court ruling in favor of the employees regarding the compensable time issue, saying such time only was compensable if it involved activities that were necessary to principal activities; for example, the court said the time it took to put on safety gear was compensable but waiting to do so was not.

"The waiting itself was neither tied to nor necessary to the erection and dismantling of scaffolding," the court said, noting the erection and dismantling of scaffolding was the required work.

Labor board reverses Obama-era settlement policy

A GOP majority at the National Labor Relations Board (NLRB) changed the agency's Obama-era procedures for reaching a settlement over a labor complaint.

In a 3-2 ruling, NLRB reversed a 2016 precedent that said an administrative law judge only could accept a proposed settlement if it provides a full remedy for each of the unfair labor practices alleged. An administrative law judge now can accept a settlement if the judge deems the offer "reasonable" and even if the general counsel objects to the settlement terms. The determination of what is considered a reasonable settlement depends on factors established in Independent Stave Co., 287 NLRB 740 (1987); general counsel can file an exception—or appeal—to the settlement.

The ruling was made soon before NLRB Chairman Philip Miscimarra's term ended Dec. 16, 2017, as the GOP majority capitalized on its opportunity to overturn an Obama-era workplace policy before the board reverted to a 2-2 partisan split. William Emanuel (R) and Marvin Kaplan (R), who were confirmed to the board in 2017, joined Miscimarra in the ruling.

On Jan. 12, President Trump announced his intention to nominate John Ring, a partner with global law firm Morgan, Lewis & Bockius LLP, to fill the vacant board position. Many stakeholders expect Emanuel and Kaplan to join President Trump's replacement pick when issuing future decisions to overturn additional Obama-era decisions.

New York officials charge construction companies with wage theft

On Dec. 4, 2017, Manhattan District Attorney Cyrus R. Vance Jr. announced he and officials in surrounding New York counties have charged area construction companies and their owners with stealing more than $2.5 million in wages from more than 400 construction workers, according to www.constructiondive.com.

The companies reportedly bounced checks, paid hourly rates that did not meet the prevailing wage, refused to compensate workers for overtime or simply did not pay workers at all. The amount of wage theft per construction company ranged from $13,000 to $700,000.

Officials said immigrant workers, who often are hired as day laborers or through other casual means, are three times more likely to be victims of wage theft and tend not to report it because of language barriers or fear of retaliation because of illegal status. Immigrant worker advocates say the New York City construction boom during the past few years could lead to more opportunities for contractors to commit wage theft and fraud.

Vance's office formed the Construction Fraud Task Force in 2015 after 22-year-old immigrant construction worker Carlos Moncayo died in a trench collapse while working at a Manhattan job site. The task force investigates safety hazards and construction-related fraud such as intentional nonpayment of prevailing wages, union benefits and workers' compensation premiums.

Nonprofit workers' advocacy group Polaris reported misclassification of employees as independent contractors also is an issue in the U.S. When workers are categorized as independent contractors, construction companies do not pay into Social Security or Medicare on their behalf and typically do not pay overtime rates or provide unemployment benefits, workers' compensation or health insurance coverage.