Newsline

On March 16, as a result of COVID-19, the U.S. Department of Labor’s Employment and Training Administration, Office of Apprenticeship, released Bulletin 2020-51 to provide flexibility regarding the requirements for approval for related instruction and reiterate that related instruction may be delivered electronically.

The bulletin provides guidance to OA staff, state apprenticeship agencies, registered apprenticeship program sponsors and other registered apprenticeship partners by supplementing Bulletin 2010-13, which describes the requirements for the approval and delivery of related instruction using electronic media as outlined in the Code of Federal Regulations, Part 29, Labor Standards for Registration of Apprenticeship Programs.

In a nutshell, Bulletin 2020-51 states, “In lieu of the approval process outlined in Bulletin 2010-13, sponsors and partners must instead notify OA within 10 business days of any changes regarding new uses of online related instruction in their programs. Within 60 days of the change, sponsors and partners must provide OA the information described in Bulletin 2010-13.”  The bulletin also encourages registration agencies to permit the use of electronic media considering the effects of the global health pandemic.

To download and review both Bulletins click the links below:

Bulletin 2010-13, Delivery of Related Instruction Through Electronic Media

Bulletin 2020-51, Flexibilities Available for the Delivery Method of Related Instruction

In response to the COVID-19 pandemic, the U.S. Office of Federal Contract Compliance Programs issued a temporary exemption from certain federal contracting requirements for a period of three months, from March 17, 2020 to June 17, 2020.

According to the U.S. Department of Labor website, new federal contracts providing COVID-19 relief are exempt from several obligations under Executive Order 11246, the Vietnam Era Veterans’ Readjustment Assistance Act, and Section 503 of the Rehabilitation Act of 1973. However, contractors must continue to abide by the nondiscrimination and nonretaliation obligations under OFCCP’s laws, according to OFCCP’s list of frequently asked questions.

More information on the exemption can be found on the DOL website.

On April 1, the National Labor Relations Board published its final rule on Representation – Case Procedures: Election Bars; Proof of Majority Support in Construction-Industry Collective-Bargaining Relationships, which makes three amendments to its rules and regulations governing the filing and processing of petitions for an NLRB-conducted representation election and proof of majority support in construction-industry collective-bargaining relationships. The final rule will go into effect on June 1.

According to an NLRB news release, the amendments, initially proposed by the NLRB in August 2019 and as modified in the final rule, include:

• Blocking Charge Policy: The amendment replaces the current blocking charge policy with either a vote-and-count or a vote-and-impound procedure. Elections would no longer be blocked by pending unfair labor practice charges, but the ballots would be either counted or impounded—depending on the nature of the charges—until the charges are resolved. Regardless of the nature of the charge, the certification of results (including, where appropriate, a certification of representative) shall not issue until there is a final disposition of the charge and its effect, if any, on the election petition.
• Voluntary Recognition Bar: The amendment returns to the rule of Dana Corp., 351 NLRB 434 (2007). For voluntary recognition under Section 9(a) of the Act to bar a subsequent representation petition—and for a post-recognition collective-bargaining agreement to have contract-bar effect—unit employees must receive notice that voluntary recognition has been granted and are given a 45-day open period within which to file an election petition. The amendment applies to a voluntary recognition on or after the effective date of the rule.
• Section 9(a) Recognition in the Construction Industry: The amendment states that in the construction industry, where bargaining relationships established under Section 8(f) cannot bar petitions for an NLRB election, proof of a Section 9(a) relationship will require positive evidence of majority employee support and cannot be based on contract language alone, overruling Staunton Fuel, 335 NLRB 717 (2001). The amendment applies to an employer’s voluntary recognition extended on or after the effective date of the rule, and to any collective-bargaining agreement entered into on or after the effective date of voluntary recognition extended on or after the effective date of the rule.

ABC filed comments in support of the NLRB’s proposed rule in January. Additionally, the ABC led-Coalition for a Democratic Workplace submitted comments in support of the NLRB proposal.

More information on the final rule can be found on the NLRB website.

During these unprecedented times, many businesses are assisting ABC members and chapters by providing them online tools for their services. Examples include:

Milwaukee Tool, Tool Sponsor of the National Craft Championships, offers flexible service options, including e-service. When scheduled in advance, the company can accept tool repairs at its 19 factory service centers. Members can contact their local service center prior to drop-off.  Milwaukee Tool’s distribution center is operating at 100% with a normal turnaround. Any COVID-19-related emergency orders or any other questions or concerns should be directed to Ron Shanaver, National Account Manager, at (262) 749-0415 or [email protected].

Business partner WEX Solutions – As a global leader in corporate payments solutions, WEX has virtual payment options that can help re-engineer business processes to reduce face-to-face contact:

• Electronic payment options allow the invoice-to-pay process to be controlled by emails and chat features, so no personal interaction or signatures are needed.

• Virtual solutions reduce multiple touches, from initial signer to end-user, when physical checks are eliminated.

• Levels of invoice-to-pay approvals can be established for payments to flow more efficiently.

Business partner Verizon Wireless – Verizon’s Pledge to Keep Americans Connected includes:

• Two months of waived internet and voice service charges for current Lifeline customers and a new affordable internet option for low-income households.

• An additional 15GB of high-speed data for wireless consumer and small-business customers, automatically applied with no customer action necessary.

• No data caps for consumer and small business Fios and DSL broadband internet plans.

• Solutions such as One Talk for small and medium businesses, providing one number for desk phones and smartphones, ensuring you’re always reachable.

• Keeping customers connected with video conferencing, voice-over-IP and mobile workforce kits.

• Advice on how to improve virtual meeting performance:

  • Do not use video on any of our calls.

  • Use the audio through your PC; do not call in from cell phones or landlines.

  • Use headsets with your PC for a better experience and to improve sound quality.

  • Schedule conference calls on the 15/45 of the hour to help with capacity.

ABC Marketplace is offering several discounts and savings services such as take-out and grocery delivery, online fitness classes and meal prep services for members and their employees. Members will also find discounts on tech supplies, so employees can work conveniently from home. For more, visit abc.corporateperks.com.

ABC will continue to inform chapters and members about other business services through Newsline and social media.

The U.S. Department of Labor continues to issue compliance assistance materials on the Families First Coronavirus Response Act, which went into effect on April 1. On March 18, the Senate passed and the president signed into law H.R. 6201, the Families First Coronavirus Response Act, which requires private-sector employers with fewer than 500 employees, and certain public employers, to provide covered employees emergency paid sick leave and expanded family and medical leave. These provisions will be administered and enforced by the DOL’s Wage and Hour Division. Late this afternoon, the WHD posted a temporary rule issuing regulations pursuant to this new law, which ABC staff is currently reviewing.  Read the DOL press release here.

A growing list of compliance assistance materials published by WHD, include a Fact Sheet for Employees, a Fact Sheet for Employers, and two new required posters—one for federal workers and one for all other employees, as well as Questions and Answers about posting requirements, and a Field Assistance Bulletin describing WHD’s 30-day non-enforcement policy. Additional resources are available here.

The latest DOL questions and answers include 59 questions and addresses the below topics:

1. What is the effective date of the Families First Coronavirus Response Act (FFCRA), which includes the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act? See FAQ #1
2. As an employer, how do I know if my business is under the 500-employee threshold and therefore must provide paid sick leave or expanded family and medical leave? See FAQ #2
3. If providing child care-related paid sick leave and expanded family and medical leave at my business with fewer than 50 employees would jeopardize the viability of my business as a going concern, how do I take advantage of the small business exemption? See FAQ #4
4. As an employee, how much will I be paid while taking paid sick leave or expanded family and medical leave under the FFCRA? See FAQ #7
5. What documents do I need to give my employer to get paid sick leave or expanded family and medical leave? See FAQ #16
6. If my employer closed my worksite before April 1, 2020 (the effective date of the FFCRA), can I still get paid sick leave or expanded family and medical leave? See FAQ #23
7. If my employer closes my worksite on or after April 1, 2020 (the effective date of the FFCRA), but before I go out on leave, can I still get paid sick leave and/or expanded family and medical leave? See FAQ #24
8. Who is a covered employer that must provide paid sick leave and expanded family and medical leave under the FFCRA? See FAQ #39
9. When does the small business exemption apply to exclude a small business from the provisions of the Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Expansion Act? See FAQ #58
10. ​If I am a small business with fewer than 50 employees, am I exempt from the requirements to provide paid sick leave or expanded family and medical leave? See FAQ #59

To learn more about the new federal paid leave, register for the ABC member-only webinar, New Federal Paid Leave and Stimulus Laws and the Impact of the COVID-19 Virus on the Construction Workplace, which will be held on April 9 at 3 p.m. EDT.

Additionally, visit ABC’s Coronavirus Update webpage.

In response to the president’s national emergency declaration, the Federal Motor Carrier Safety Administration has announced a three-month waiver to prevent the possible shortage of commercial motor vehicle drivers and continue to allow intrastate and interstate commercial driver’s license (CDL) and commercial learners permit (CLP) holders to transport critical goods and supplies to businesses and individuals affected by COVID-19.

The FMCSA has determined that it is in the public interest to issue a waiver until June 30, 2020, waiving a requirement that a CLP holder be accompanied by a CDL holder, with the proper CDL class and endorsements, seated in the front seat of the vehicle while the CLP holder operates a CMV on public roads or highways. The CLP holder must possess evidence from the testing jurisdiction, including an authorized third-part tester, that the CLP holder has passed the CDL driving skills test, and has a valid non-CDL driver’s license, CLP, and medical certificate, unless the FMCSA waiver issued on March 24, 2020 applies.

Additionally, the waiver removes the restriction under 49 CFR 383.79(a) that limits a state to administer a driving skills test, in accordance with subparts F, G, and H of 49 CRF 383, to an out-of-state CDL applicant who has taken driving training in that state.

To read the full announcement, visit fmcsa.dot.gov

The ABC Virginia Chapter has started implementing a competency-based component for their registered apprenticeship program. The chapter has already started to develop tasks for their electrical, HVAC and plumbing apprenticeship programs. The intent of the competency-based approach is to ensure apprentices receive experience in all facets of their craft, increase the speed of skill acquisition and enhance overall field performance. This innovative addition to ABC Virginia’s apprenticeship program is expected to be implemented in August 2020.

For more information about this program, contact Tim Mongeau.
 

Tim Keating, owner and president, R. C. Stevens Construction Co., took the reins as the 2020 ABC national chair at ABC’s March Board of Directors meeting. “With decades of combined industry leadership and experience, Tim Keating is committed to ABC’s value proposition to help our membership develop people, win work and deliver that work safely, ethically and profitably for the betterment of the communities in which they work,” said Michael Bellaman, ABC president and chief executive officer. Check out ABC’s new video to learn more about Tim and his goals for ABC in 2020.

Following the passage of the Coronavirus Aid, Relief and Economic Security Act (CARES) and President Trump signing it into law, ABC has gathered some additional information on the bill’s small business and tax provisions.

ABC also encourages its members to consult with their tax accountants on these provisions to see what best fits their business needs. 

Paycheck Protection Program Overview

The bill authorizes $2 trillion in federal funding for programs to support our nation’s hospitals and businesses, and the most critical of these programs for ABC members (a majority of which are small businesses) is the Paycheck Protection Program that authorizes $349 billion in forgivable loans from the Small Business Administration. PPP loans must be made during the period prior to June 30, 2020.

The bill defines eligibility for these loans as a small business, 501(c)(3) nonprofit, a 501(c)(19) veteran’s organization, or Tribal business concern described in section 31(b)(2)(C) of the Small Business Act with not more than 500 employees, or the applicable size standard for the industry as provided by SBA, if higher. It also includes sole-proprietors, independent contractors and other self-employed individuals as eligible for loans and allows businesses with more than one physical location that employs no more than 500 employees per physical location in certain industries, mainly franchise and food services, to be eligible.

The bill requires eligible borrowers to make a good faith certification that the loan is necessary due to the uncertainty of current economic conditions caused by COVID-19; that they will use the funds to retain workers and maintain payroll, lease and utility payments; and are not receiving duplicative funds for the same uses from another SBA program.

PPP Loans

PPP loans can be as large as 250% of a business’s average monthly payroll costs over the last 12 months, however, the maximum loan amount under this program is $10 million through Dec. 31, 2020. It also specifies allowable uses of the loan to include payroll support, such as employee salaries, paid sick or medical leave, insurance premiums and mortgage, rent, and utility payments.

PPP loans are made by SBA-certified lenders (over 800 financial institutions currently) in all 50 states through delegated authority from the SBA. In addition, the SBA Administrator and Secretary of Treasury may further authorize additional lenders to join the program, as needed. SBA-certified lenders simply need to verify that a small business was in operation on Feb. 15, 2020 and paid employee salaries and payroll taxes or paid independent contractors, as reported on Form 1099-MISC, for eligibility in the PPP. 

The SBA is required to issue regulations on the application process within 15 days after the enactment of the CARES Act, and ABC will be sure to provide updates on any agency guidance that comes out.

To prevent double dipping into these relief efforts, if a business receives a loan through the PPP it cant then use the retention tax credit and can’t defer payroll tax if/when the loan is forgiven.

Individual businesses should consult with their tax accountants and weigh the benefits of these individual provisions and see what works best for them.

Loan Forgiveness

Principal amounts on PPP loans, for the first eight-week period from when the PPP loan is made, may be forgiven if loan funds are used to cover payroll costs, interest payments on mortgages (not including prepayments or principal), rent and utilities.

The amount of a PPP loan that may be forgiven cannot exceed the principal amount of the loan. The amount forgiven will be reduced proportionally by any reduction in employees retained compared to the prior year and reduced by the reduction in pay of any employee beyond 25 percent of their prior year compensation. To encourage employers to rehire any employees who have already been laid off due to the COVID-19 crisis, borrowers that rehire workers previously laid off will not be penalized for having a reduced payroll at the beginning of the period.

Tax Provisions

Other critical provisions in the bill include tax provisions that will help businesses maintain liquidity through this national crisis.

• Retention tax credit. Creates a refundable payroll tax credit for 50 percent of wages paid by employers to employees during the COVID-19 crisis.
• Qualifying employers are those whose (1) operations were fully or partially suspended due to a COVID-19-related shutdown order, or (2) gross receipts declined by more than 50% when compared to the same quarter in the prior year.
• For employers with greater than 100 full-time employees, qualified wages are wages paid to employees when they are not providing services due to the COVID-19-related circumstances described above.
• For eligible employers with 100 or fewer full-time employees, all employee wages qualify for the credit, whether the employer is open for business or subject to a shutdown order.
• The credit is capped at $10,000/quarter per employee, including health benefits paid.
• The credit is provided for wages paid or incurred from March 13, 2020, through Dec. 31,  2020.
• Delay of payment of employer payroll taxes. Payment would be due over the course of two years with half due Dec. 31, 2021 and the balance due Dec. 31, 2022.
• Modification for net operating losses (NOL). This provision would allow five-year carryback for 2018, 2019 and 2020 tax years, respectively.
• Modification of limitation on losses for taxpayers other than corporations. The 80% carryback limitation would be lifted for pass-through entities to harmonize with corporate NOL treatment for 2018, 2019 and 2020.
• Modification of credit for prior-year minimum tax liability of corporations. This would accelerate the ability of companies to recover AMT credits in the form of refunds.
• Modification of limitation on business interest. This would loosen the limitation on interest deduction to 50% of EBITDA for 2019 and 2020.
• Technical amendments regarding qualified improvement property (QIP). This fix to the so-called “retail glitch” would unlock $15 billion in liquidity for QIP expenses incurred by hard-hit sectors like restaurants, hotels and retail, among others.

Families First Coronavirus Response Act—DOL Resources

On March 26, the U.S. Department of Labor issued additional guidance explaining paid sick leave and expanded family and medical leave under the Families First Coronavirus Response Act:

• Fact Sheet for Employers (Spanish PDF)
• Fact Sheet for Employees (Spanish PDF)
• FAQs
• Poster—Employee Rights
• Posting Requirements—FAQs
• Field Assistance Bulletin—Enforcement Guidance
• March 26 DOL Press Release
• DOL’s WHD COVID-19 and the American Workplace  

On March 27, ABC Vice President of Legislative and Political Affairs Kristen Swearingen issued a statement saying that the CARES Act will provide a critical lifeline for construction companies as they work hard to maintain their businesses. Read the rest of the statement here.

Additional information and resources regarding the coronavirus can be found on the ABC Coronavirus Update webpage: abc.org/coronavirus.

Following last week’s passage of the Families First Coronavirus Response Act of 2020 (FFCRA) and President Trump signing it into law, the U.S. Department of Labor has requested ideas and input on the paid leave provisions of the new law as it issues implementing regulations and guidance.

This national online dialogue provides an opportunity for employers and workers to play a key role in shaping the development of the Department of Labor's compliance assistance materials and outreach strategies related to the implementation of FFCRA.

The national online dialogue on will be held from March 23 - March 29, 2020.

In a statement, the Department noted that the “ideas and comments gathered from this dialogue will inform compliance assistance guidance, resources, and tools, as well as outreach approaches, that assist employers and employees in understanding their responsibilities and rights under the FFCRA.”

DOL FFCRA Resources:

• Fact Sheet for Employers
• Fact Sheet for Employees
• FAQs
• DOL Press Release on Guidance Materials

ABC general counsel Littler Mendelson’s analysis of guidance.

Additional DOL resources can be found on ABC’s Coronavirus Update webpage.