Category: Advocacy

H.R. 133 Offers Relief, Opportunities and Challenges Going into 2021

The $2.3 trillion Consolidated Appropriations Act, 2021 (H.R. 133) provides badly needed COVID economic relief, construction market stimulus and a forward-looking prospect for market recovery in public sector infrastructure investments as the pandemic recedes. In a memo to the MCAA Government Affairs Committee, Chair Jim Gaffney provided a summary digest of the items most likely to impact MCAA members and the MCAA policy agenda. The President is seeking greater individual stimulus checks, so there may be an amendment or veto, but this summary will stand for most of what will be the final result. Correction: The latest COVID relief measure signed into law Sunday does not extend the requirement that employers offer paid sick and family leave as required under the Families First Coronavirus Relief Act passed last March as erroneously reported in the MCAA summary published in the Weekly Update on December 28, 2020. The latest COVID bill extends only the availability of the refundable tax credit as under the FFCRA until the end of March 2021 for those employers voluntarily providing such paid leave after December 31, 2020. MCAA regrets the error.

Congress Expected to Pass Stimulus Package. Join Withum’s December 23rd Webinar Covering Package Details.

Wednesday, December 23 | 1:00 PM – 2:30 PM EST

Join experts from Withum’s SBA Financial Services and Tax Services Teams as they navigate through the myriad of provisions included in the more than 5,000 page legislative package finalized early this week. Withum’s team will cover in detail the provisions of the legislation which cover the following topics:

  • PPP Loans: Another Round of Funding
  • PPP Loan Forgiveness Process (Round 1 and Round 2)
  • PPP Loan Forgiveness Deductibility

Withum will also cover the basics of the following provisions, but expect to have more detailed communications on these as guidance becomes more clear:

  • Unemployment Provisions
  • Stimulus Checks
  • Employer Focused Tax Credits

SAVE YOUR SEAT

Connect with Peers on Hot-Button Issues at the 2020 Industry Improvement Funds Virtual Seminar on December 3, 2020 at 11:00 a.m. EST

Discover perspectives from around the country when you connect with industry improvement fund trustees and local association executives at the 2020 Industry Improvement Funds Virtual Seminar. Group discussions will provide time to learn from one another about hot-button topics: the new norm, engagement, post-COVID actions and collective bargaining agreement extensions. Groups will be pre-assigned to provide a variety of perspectives from around the country. The seminar will also include legal updates and a legislative and regulatory outlook. Join us on December 3, 2020 from 11:00am – 1:45pm Eastern for this free education. Don’t delay – register today!

Withum’s Latest Developments with the PPP Loan Forgiveness Webinar

Withum’s SBA Financial Assistance Services Team held a webinar on November 20, 2020 discussing the latest developments with the SBA Loan Forgiveness Application submissions.

Topics included:

  • Detailed discussion of which PPP Loan Forgiveness Application Forms are appropriate to use:
    • Form 3508
    • Form 3508 EZ
    • Form 3508 S
  • Common preparation pitfalls and tips in using third party payroll reports
  • The newly issued and controversial “Loan Necessity Questionnaires” – Forms 3509 (For-Profit Borrowers) and 3510 (Non-Profit Borrowers)
  • Tax and US GAAP treatment of PPP loans

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Register Now for the 2020 Industry Improvement Funds Virtual Seminar

Registration is now open for the 2020 Industry Improvement Funds Virtual Seminar on December 3, 2020 from 11:00am – 1:45pm Eastern. The seminar will provide legal updates and a legislative and regulatory outlook. Group discussions centered around the new norm, engagement, post-COVID actions and collective bargaining agreement extensions will round out the program. Don’t delay, register now for this complimentary education.

MCAA and the UA File Joint Comments on Independent Contractor Status

In a joint letter to the Department of Labor (DoL) submitted on October 26, 2020, MCAA and the UA requested that the agency withdraw proposed regulations on independent contractor status under the Fair Labor Standards Act (RIN 1235-AA34).

The joint comments extend a decades long collaboration between the UA and the MCAA on this very important issue that dates back to 1996, when the two organizations worked together on testimony at the House and Senate fiscal committees on the then proposed Section 530 tax law changes to close the worker misclassification loophole (which has yet to be addressed). The UA and MCAA continue to work jointly to address the very intractable and serious tax and workforce standards, and fair competition abuses of tax cheating by unscrupulous employers that misclassify employees as independent contractors.

The most recent joint MCAA/UA comments to the Labor Department on the proposed loosening of the “economic reality” test to judge if workers are covered by the Fair Labor Standards Act seeks a roll back of the proposal and urges DoL to take a much broader approach to effectively address the long-standing and unabated serious abuses of worker misclassification.

In the letter, MCAA President Brian Helm and UA General President Mark McManus state that, “In fact, the DoL proposal is hasty in the extreme, too narrow, unfairly permissive, and misses an opportunity to make significant strides in stemming abuses, rather than narrowing the established DoL economic reality/suffer and permit framework for worker classification analysis, to open up a more lax administration of that standard.”

The MCAA/UA comments go beyond characterizing the problem, which has long since been well documented by myriad studies at the Federal and state levels, and questions why the DoL has chosen to take this hasty and narrow approach at this late stage of the Administration. The joint MCAA/UA comments call for a much broader and long overdue inter-agency approach by affected Federal workforce enforcement agencies to create a more effective remedial approach by all Federal labor and employment and tax enforcement agencies – including issuing industry-by-industry compliance guidance.

In the letter, MCAA President Brian Helm and UA General President Mark McManus strongly assert that, “…the MCAA/UA joint interest in finally and comprehensively staunching the longstanding and persistent scourge of worker misclassification, unfair competition, legal compliance avoidance, and tax cheating by unscrupulous employers in the construction industry – where misclassification goes beyond prevalent to rampant – …is very strong and in perfect parallel with the public interest in maintaining high workforce standards.”

Joint Comments

Treasury Department Issues Guidance on Payroll Tax Deferral

By: Jim Paretti, Michael J. Lotito, and William Hays Weissman
August 31, 2020

On August 28, 2020, the U.S. Department of the Treasury issued guidance for employers with respect to the deferral of the employee portion of certain payroll taxes.  This guidance stems from a presidential memorandum issued earlier in the month authorizing employers to defer payment of these taxes.  That memorandum allowed for the deferral of the employee portion of federal payroll taxes (6.2% for Social Security and 1.45% for Medicare) from September 1, 2020 until December 31, 2020.  The memorandum allows employers to defer payment of the employee portion of these payroll taxes for workers earning less than $4,000 on a biweekly basis (roughly $104,000 annually). 

Treasury’s guidance makes clear that an employer may elect to defer the payment of the employee portion of these taxes on “applicable wages” until next year, when they would be owed in installments between January 1, 2021 and April 30, 2021.  “Applicable wages” are defined as those wages paid to an employee on pay dates between September 1, 2020 and December 31, 2020, “but only if the amount of such wages or compensation paid for a bi-weekly pay period is less than the threshold amount of $4,000 or the equivalent threshold amount with respect to other pay periods.”  The guidance specifies that applicable wages are determined on a pay period by pay period basis.  Finally, the guidance makes clear that employers are required to pay these taxes to the federal government, but goes on to state that employers “may make arrangements to otherwise collect the [due taxes] from the employee.”

The guidance leaves several clear takeaways.  First, it is clear that an employer is permitted to defer payment of these taxes, but is not required to.  Second, it is likewise clear that unless further action is taken (likely by Congress), these taxes are merely deferred, not forgiven, and will be due by the end of April 2021.  Finally, it is not clear what, if any, role an individual employee plays with respect to determining whether they want their share of these taxes deferred, or paid in the normal course.  Employers will want to keep each of these points in mind as they evaluate whether or not to participate in this elective deferral.

It is unclear whether Treasury will issue additional guidance regarding this program.  Littler WPI will keep you apprised of relevant developments.

MCAA PAC Appreciates Your Support

Throughout the COVID-19 pandemic, the MCAA Government Affairs Committee has been working tirelessly meeting with countless Congressional and Senate offices remotely to push our agenda forward. This vital work was made possible by PAC contributions to candidates who support our positions over the long term. Please join us in thanking those who gave and consider making a contribution to support these vital efforts.

The Government Affairs Committee’s legislative and advocacy work on issues like COVID-19 cost increases on Federal projects, change orders in the NDAA, pension issues, and the PBGC just to mention a few was made possible by:

  • Robert Beck
  • Robert Bolton
  • Tim Brink
  • Michael Cables
  • Don Chase
  • Jay Chase
  • Matthew Cunningham
  • Steve Dawson
  • Jim Dougherty
  • Charles Fell
  • Lyle Ferguson
  • John Feikema
  • John Ferrucci
  • Steve Fosdick
  • Greg Fuller
  • James Gaffney
  • Michael Gallagher
  • John Geiling
  • Don Giarratano
  • Jason Gordon
  • Brian Helm
  • Scott Hinton
  • Brian Hughes
  • Jay Lusita
  • William Lynch
  • Mark Magnuson
  • Rick Moreno
  • Edward Newville
  • David Quirk
  • Mark Rogers
  • Bob Snyder Jr.
  • Lawrence Verne
  • Frank Wall
  • Scott Wallenstein

MCAA’s 2020 advocacy efforts continue to need your help. Contribute to the MCAA PAC, a critical factor to our success in moving forward legislation that positively affects your business.

(Note: In order to comply with campaign finance laws, you will need to complete a solicitation authorization form before making a contribution. Find additional details and both the solicitation authorization and contribution forms via the button below.)

A PAC Update from MCAA Government Affairs Committee Chairman, Jim Gaffney

In March, as a majority of the country slowed down, the MCAA Government Affairs Committee continued to work tirelessly meeting with countless Congressional and Senate office’s remotely to push our agenda forward. The committee has been working on COVID-19 cost increases on Federal projects, change orders in the NDAA, pension issues, and the PBGC just to mention a few.

What has helped the committee through this period has been PAC donations. The reality we face during today’s political time is the need for donations. MCAA’s PAC fund has been hit hard as many political fundraisers have been cancelled and political leaders have requested help.

Today, we ask for your help.

I, Jim Gaffney, am making a donation to the MCAA PAC fund, and have asked the M&SCA of Eastern PA to match my donation. If each association and member contractor could make a donation to the PAC we can continue to fight for the political needs of our association. I know times are hard for many, but please realize the organizations against our issues are not letting up and many have deep pockets. For those who have and continue to support the PAC, I want to personally thank you for your help. The PAC makes a difference for all of us and our industry.

MCAA’s 2020 advocacy efforts need your help. Donate to the MCAA PAC, a critical factor to our success in moving forward legislation that positively affects your business.

(Note: In order to comply with campaign finance laws, you will need to complete a solicitation authorization form before making a contribution. Find additional details and both the solicitation authorization and contribution forms via the button below.)

Contribute

Second Chance at Paycheck Protection Program Loan

As the new Senate bill was passed by the House on April 23, 2020, the Paycheck Protection Program (PPP) gained additional emergency funds. MCAA partners and law firm, Lindabury, McCormick, Estabrook & Cooper, P.C., provide an overview of the program application and loan forgiveness requirements to assist MCAA members.

DOL Releases Field Assistance Bulletin 2020-1 & FFCRA Posters for Employers

The DOL Wage and Hour Division has updated their COVID-19 webpage to include Field Assistance Bulletin 2020-1, “Temporary Non-Enforcement Period Applicable to the Families First Coronavirus Response Act (FFCRA),” states that the DOL will not bring enforcement actions against any public or private employer for violations of the leave requirements in the FFCRA for a 30-day period ending on April 17, 2020, provided that the employer has made reasonable, good faith efforts to comply with the Act.

Separately, the Wage and Hour Division have released the posters that employers are required to display outlining the rights of federal employees and non-federal employees under the FFCRA. The Wage and Hour Division has also made available a FAQ addressing issues related to the posters (e.g., where the posters must be displayed, etc.)

3/20 Update: Families First Coronavirus Response Act (HR 6201)

The Families First Coronavirus Response Act (HR 6201) was passed by the Senate and enacted into law with the President’s signature on March 18, 2020. The new law takes effect on April 2, 2020 and will remain effective until December 31, 2020.

For MCAA employers, it has three areas of immediate impact: paid family leave for employees unable to work or telecommute for reasons relating to the COVID-19 health emergency, paid sick leave for employees unable to work or telecommute for reasons relating to the coronavirus emergency – both redeemable in large measure by quarterly tax credits against payroll taxes- and then a requirement of no-cost coronavirus testing by our joint health plans.

The measure is different from the earlier version of HR 6201 and will present significant technical corrections, as well as calling for significant regulatory guidance in the implementation process. Immediately upon enactment, Senate lawmakers called for yet further paid sick and family leave measures to be included in subsequent economic and health crisis emergency measures.

So, this digest supplants any earlier briefing of HR 6201 and should be taken as preliminary, pending further technical corrections, regulatory guidance, and then perhaps even further emergency legislation on these subjects.

HR 6210 – Division C – Emergency Family and Medical Leave Expansion Act

1.1 Eligible Employees & Employers: The new law applies to employers with fewer than 500 employees (for 20 or more weeks of the current or preceding year) and employees who have been employed for at least 30 days with their respective employer.

1.2 Points of Clarification: It will need to be clarified how either criteria operate if the employers choose to exercise the discretion permitted in the law to implement compliance through a multiemployer collective bargaining agreement joint benefit fund context. Similarly, for eligibility of non-bargaining unit employees, the 30-day period of employment also will need to be clarified. It is unclear whether the 30-day employment must be closely coincident with the request for leave or otherwise.

1.3 Reasons for Paid Family Leave: Eligible employees are entitled to paid leave for “qualified need related to a public health emergency” which means the employee is unable to work (including telework) due to the need to take care of a child under the age of 18 whose elementary or secondary school is closed, or place of care or is unavailable due to COVID-19 precautions

1.4 Compensation Required: The law says the first 10 days for which an employee takes leave is to be unpaid. The employee may elect to use any accrued vacation leave, personal leave, medical leave, or sick leave for that initial 10 days. After that, the law requires employers to provide paid leave for each day in the amount of no less than two-thirds of the employee’s regular rate of pay for the regularly scheduled number of hours that period. For employees with fluctuating schedules, the law requires employers to calculate a daily average over the exact preceding 6-month time period.

1.5 Other Requirements: Eligible employees are required to give the employer advanced leave, if foreseeable and practicable. Employers with 25 or more employees are required to reinstate a worker returning from leave to the worker’s former job. If that position is no longer available, employers are required to make reasonable efforts to find a comparable position for that worker over the course of one year. Employers with fewer than 25 employees are required to find a new position for reinstatement if the worker’s position has been eliminated during the leave.

1.6 Multiemployer Collective Bargaining Implementation: The laws says an employer with a Multiemployer bargain relationship, may – consistent with the terms of the CBA – fulfill it obligation under the law based on the paid leave each of its [bargaining unit] employees is entitled to under the law – and that those employees may receive mandated pay from the Multiemployer fund or plan provided for that purpose under the CBA.

1.7 Need for Further Clarification: There are several issues with this aspect of the law – whether the labor law restrictions against direct dealing with union-represented workers are affected by this provision. Also, it’s is unclear whether the reduced pay and regular rate provisions and possible lack of benefits contributions is overcome by the superseding provisions (in other Divisions of HR6201) saying that the law does not preempt the terms of any bargaining agreement pertaining to pay and benefits, perhaps including a provision relating to pay and benefits for hours worked or for hours paid.

HR 6201 – Division E – Emergency Paid Sick Leave Act

2.1 Covered Employers and Eligible Employees: Covered employers are those employing 500 or fewer employees. Eligible employees cover all employees, without the 30-day employment eligibility included in the Division C Family Leave as above. The law specifically says that the paid sick time shall be available for immediate usability by the employee for eligible reasons regardless of how long the employee has been employed.

2.2 Permitted Reasons for Paid Sick Leave: Employees are entitled to paid sick leave to the extent they are unable to work or telecommute because:

  • 2.2.1 The employee is subject to Federal, state or local quarantine or isolation order related to COVID-19;
  • 2.2.2 The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  • 2.2.3 The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
  • 2.3.4 The employee is caring for an individual who is subject to a quarantine order issued by Federal, state or local authorities, or who has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  • 2.3.5 The employee is caring for a son or daughter whose school or day care has been closed, or if other child-care is unavailable, due to COVID-19 precautions; and/or
  • 2.3.6 The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Labor and Treasury Departments.

2.3 Duration and Amount of Sick Pay: Covered full-time employees are entitled to 80 hours of paid leave. Part-time employees are entitled to the average number of hours they work over a two-week period. Employers are prohibited from requiring workers to use other paid leave in advance of using the allotted paid sick leave. Unused paid leave eligibility does not carry over from year to year and is not payable on termination of employment by terms of the law.

The amount of pay required by the law under this section is based on varying limits depending on the reason for the leave. If the leave is for the employee’s illness as set out in 2.1.1, 2.1.2, or 2.1.3 above, then the rate of pay is the regular rate of pay, subject to a maximum of $511 per day, with a maximum of $5110 in the aggregate. For paid sick leave relating to others’ illnesses as in 2.2.4, 2.3.5, or 2.3.6 above, the rate of pay required is two-thirds the regular rate, capped at $200 per day, and $2000 in the aggregate.

2.4 Collective Bargaining Implementation: Division E also sets out employer discretion to fulfill its requirements under collective bargaining and benefit fund administration, raising the same ambiguities as above. Similarly, Division E’s rules of construction recite that it does not operate to diminish rights and benefits that the employee is entitled to under a bargaining agreement or other Federal, state or local law, or employer policy.

Both Division C and E – paid family and paid sick leave can be waived by the Department of Labor for specific small business employers with fewer than 50 employees, upon showing that the imposition of the requirements would jeopardize the viability of the business.

In conclusion, the process of defining exactly what is intended and will be required at the end of the legislative and regulatory process on the issues is just beginning. MCAA will keep you up to date on developments as they become clearer.

MCAA PAC Appreciates Your Support

Thank you to everyone who supported the MCAA PAC in 2019. With your support, the MCAA PAC can continue its efforts to gain our members and our industry a fair hearing in federal public policy decisions.

Those supporting the MCAA PAC from January 1, 2019 – December 30, 2019 were:

  • Shannon Baker
  • Robert Beck
  • Robert M. Bolton
  • Michael Brandt
  • Pete Buongiorno
  • Michael Cables
  • Robert Carder
  • Jay Chase
  • Lonzo Coleman
  • Steve Cornelius
  • Dennis Corrigan
  • Matthew Cunningham
  • Anthony D’Ascenzo
  • Jim DeFlavio
  • Fredric J. Dorci
  • Carl M. Evans
  • Robert Felix
  • Chuck Fell
  • Christopher J. Freeman
  • Greg Fuller
  • Michael Gallagher
  • Don Giarratano
  • Richard Gopffarth
  • Jason Gordon
  • Curtis Harbour
  • Tim Healy
  • Brian Helm
  • Brian C. Hughes
  • Robert A. Lake
  • William Lynch
  • Mark Magnuson
  • The Miles Family Revocable Trust
  • Beni Monaco
  • Michael Reed
  • Rebecca A. Rex
  • James R. Reynolds
  • Mark Rogers
  • Nicholas Sapnar
  • Richard Sawhill
  • Bryan Suttles
  • Michael Tobin
  • Tim Vasquez
  • Lawrence Verne
  • David J. Voytko
  • Frank Wall

MCAA PAC appreciates your support.

Learn More and Contribute

MCAA and the UA File Joint Comments on Multiemployer Pension Reform

The UA and MCAA continue to actively press for balanced multiemployer pension reform this year. In a joint letter to the Senate, the two organizations detailed specific elements of compromise to ameliorate the damaging aspects of the recent Grassley/Alexander proposal. The organizations’ goal is to attain consensus compromise that gets multiemployer pension reform back on track for possible enactment this year.

In the joint letter transmitted to the Senate on January 14, 2020, the UA and MCAA outline the key elements of analysis and potential compromise. The letter:

  • Continues strong support for the adoption of new plan designs such as Composite Plans as a key element in restoring options to ground the multiemployer defined benefit system in more sustainable models going forward as a viable option to conversion to defined contribution plans overall, as is prevalent now in the single employer system.
  • Backs the PBGC partition elements of the Grassley/Alexander proposal generally, with some substantive and procedural modifications.
  • Calls for substantial moderation of the proposed PBGC premium increases.
  • Demonstrates the imperative need to moderate the crippling imposition of significantly detrimental mandated lower asset return assumptions in the near term.
  • Backs the proposed new Zone status provisions, with some needed clarifications.

The joint letter also transmits the two latest UA/MCAA/Horizon Actuarial Services analyses of pension reform impact on UA/MCAA plans based on the comprehensive data in the MCAA/Horizon database of all multiemployer plans nationwide.

Joint Letter

Analysis of Grassley/Alexander Proposal

Multiemployer Pension Plan Reform Policy Issues

National Issues Conference Registration Is Open

Our industry’s legislative agenda is packed with critical legislation and regulations that will affect your company’s future. The 2020 National Issues Conference provides updates on these issues and a chance to share your concerns about them with your House and Senate representatives. Join us from May 5 – 7, 2020 in Washington, D.C. Your participation is essential to gaining credible outcomes for our industry!

Study Reinforces the Value of Joint Apprenticeship Programs

A new study on Illinois apprenticeship programs shows that apprenticeships are the bachelor’s degrees of the construction industry. Joint labor-management programs, in particular, provide a more effective and inclusive offering than unilateral (open shop) programs in key areas such as training hours, graduation rates, and competitive earnings that rival the performance of Illinois’ four-year universities.

The study, titled The Apprenticeship Alternative Enrollment, Completion Rates, and Earnings in Registered Apprenticeship Programs in Illinois, provides 5 key takeaways from analyzing 17 years of apprenticeship data in Illinois:

1) Joint labor-management programs enrolled 97% of all construction apprentices in Illinois.

2) Joint construction programs require 27% more hours of training (7,306 hours) than the minimum requirements to earn a bachelor’s degree from the University of Illinois (5,760 hours).

3) Joint construction programs have a completion rate of 54%, on par with Illinois’ public universities (61%), higher than for-profit institutions (43%), and significantly higher than employer-only programs (31%). The ABC completion rate in Illinois is a dismal 16%.

4) The racial diversity of graduates from joint construction programs is similar to Illinois’ public universities, and joint construction programs are both more diverse and have higher completion rates among people of color, women, and veterans than employer-only programs.

5) Despite a higher likelihood of suffering an unemployment spell, a union journeyworker earns about as much over a career ($2.4 million) as a worker with a bachelor’s degree ($2.5 million after student debt).

Read the Study