July 8, 2019
video News
OCA Laborers Heavy Highway Agreement Now Available 

The 2019-2022 OCA/Laborers Highway Heavy Agreement is now available in both printed booklet form as well as in PDF version online format which can be downloaded from the OCA website. 

If you wish to order the printed booklets, please contact Kim Dillon in the OCA office by phone at 614-488-0724, or via email at, kdillon@ohiocontractors.org

If you wish to download the PDF version of the agreement, go to the OCA website at www.ohiocontractors.org. Sign in with your OCA membership credentials and click on the Labor Employment Law section. You will find the Labor Agreements there. 

The Cement Masons, Teamsters and Carpenters agreements are nearing completion and will be listed as soon as they are completed. Look for an announcement in the newsletter. 

Free Trench Safety Webinar 

Recently, OCA joined in with OSHA and other sponsors to conduct two days of trenching & excavation safety instruction, demonstrations and witness testimony from survivors of trench collapse. The “Trench Safety Days” on June 24 and 25 were well attended and served our audience well for refocusing on one of the most hazardous operations that we face as contractors and employees. 

Unfortunately, trenching and excavation operations in the construction industry continue to take lives needlessly. Recent trench failures with resulting fatalities in Ohio drive this point home. Contractors and their employees have many resources available to ensure that no one ever enters an unsafe trench. Do you know what you must do to protect your workers and your company when conducting trenching and excavation operations? If you don’t and you missed our “Trench Safety Days”, you have another opportunity! 

On the heels of our successful event, the Ohio BWC, Division of Safety & Hygiene is offering a free Trench Webinar. There is no cost to sit in on the event, scheduled on July 15, 2019 from 1:00 – 3:00 p.m. 

The Webinar will be conducted by Mona Weiss, an OSHA authorized construction outreach trainer with 32 years of experience in the field of safety and health. She holds a B.S. in Occupational Safety and Health and held safety management positions with two Forbes rated companies. She has worked throughout the U.S. and in Finland. 

Should you have any questions about the Webinar, please contact Michele Schuck of the BWC at michele.s.2@bwc.state.oh.us. Otherwise, please click on the following link for additional information about the Trenching Webinar and to register. Registration and more information here

DOL Offers Wage and Hour Compliance Tips in Three Opinion Letters 

The U.S. Department of Labor (DOL) issued three new opinion letters addressing how to comply with the Fair Labor Standards Act (FLSA) when rounding employee work hours and other wage and hour issues. 

Opinion letters describe how the agency would enforce statutes and regulations in specific circumstances presented by an employer, worker or other party who requests the opinion. Opinion letters are not binding, but there may be a safe harbor for employers that show they relied on one. 

The DOL Wage and Hour Division's July 1 letters covered: 

   • Permissible rounding practices for calculating an employee's hours worked. 
   • How to apply the "highly compensated employee" exemption from overtime pay to paralegals who are employed         by a trade organization. 
   • How to calculate overtime pay for nondiscretionary bonuses that are paid on a quarterly and annual basis. 

Here are the key takeaways for employers. 

Rounding Practices 

One letter reviewed whether an organization's rounding practices are permissible under the Service Contract Act(SCA), which requires government contractors and subcontractors to pay prevailing wages and benefits and applies FLSA principles to calculate hours worked. 

The employer's payroll software extended employees' clocked time to six decimal points and then rounded that number to two decimal points. When the third decimal was less than .005, the second decimal was not adjusted, but when the third decimal was .005 or greater, the second decimal was rounded up by 0.01. Then the software calculated daily pay by multiplying the rounded daily hours by the SCA's prevailing wage. 

Employers may round workers' time if doing so "will not result, over a period of time, in failure to compensate the employees properly for all the time they have actually worked," according to the FLSA. 

"It has been our policy to accept rounding to the nearest five minutes, one-tenth of an hour, one-quarter of an hour, or one-half hour as long as the rounding averages out so that the employees are compensated for all the time they actually work," the opinion letter said. 

Based on the facts provided, the DOL concluded that the employer's rounding practice complied with the FLSA and the SCA. The rounding practice was "neutral on its face" and appeared to average out so that employees were paid for all the hours they actually worked. 

For employers, the letter provides two significant details, said Marty Heller, an attorney with Fisher Phillips in Atlanta. First, it confirms that the DOL applies the FLSA's rounding practices to the SCA. Second, it confirms the DOL's position that computer rounding is permissible, at least when the rounding involves a practice that appears to be neutral and does not result in the failure to compensate employees fully over a period of time, he said. 

Patrick Hulla, an attorney with Ogletree Deakins in Kansas City, Mo., noted that the employer's rounding practice in this case differed from many employers' application of the principle. Specifically, the employer was rounding time entries to six decimal places. Most employers round using larger periods of time—in as many as 15-minute increments, he said. 

"Employers taking advantage of permissible rounding should periodically confirm that their practices are neutral, which can be a costly and time-consuming exercise," he suggested. 

Exempt Paralegals 

Another letter analyzed whether a trade organization's paralegals were exempt from the FLSA's minimum wage and overtime requirements. Under the FLSA's white-collar exemptions, employees must earn at least $23,660 and perform certain duties. However, employees whose total compensation is at least $100,000 a year are considered highly compensated employees and are eligible for exempt status if they meet a reduced duties test, as follows: 

   • The employee's primary duty must be office or nonmanual work. 
   • The employee must "customarily and regularly" perform at least one of the bona fide exempt duties of an                      executive, administrative or professional employee. 

Employers should note that the DOL's proposed changes to the overtime rule would raise the regular salary threshold to $35,308 and the highly compensated salary threshold to $147,414. 

Because "a high level of compensation is a strong indicator of an employee's exempt status," the highly compensated employee exemption "eliminates the need for a detailed analysis of the employee's job duties," the opinion letter explained. 

The paralegals described in the letter appeared to qualify for the highly compensated employee exemption because all their duties were nonmanual, they were paid at least $100,000 a year, and they "customarily and regularly" perform at least one duty under the administrative exemption. 

The letter cited "a litany of the paralegals' job duties and responsibilities—including keeping and maintaining corporate and official records, assisting the finance department with bank account matters, and budgeting—that are directly related to management or general business operations," the DOL said. 

The DOL noted that some paralegals don't qualify for the administrative exemption because their primary duties don't include exercising discretion and independent judgment on significant matters. But the "discretion and independent judgment" factor doesn't have to be satisfied under the highly compensated employee exception. 

Calculating Bonuses 

The third letter discussed whether the FLSA requires an employer to include a nondiscretionary bonus that is a fixed percentage of an employee's straight-time wages received over multiple workweeks in the calculation of the employee's regular rate of pay at the end of each workweek. 

Under the FLSA, nonexempt employees must be paid at least 1 1/2 times their regular rate of pay for hours worked beyond 40 in a workweek, unless they are covered by an exemption—but the regular rate is based on more than just the employee's hourly wage. It includes all remuneration for employment unless the compensation falls within one of eight statutory exclusions. Nondiscretionary bonuses count as remuneration and must be included in the calculation. 

"An employer may base a nondiscretionary bonus on work performed during multiple workweeks and pay the bonus at the end of the bonus period," according to the opinion letter. "An employer, however, is not required to retrospectively recalculate the regular rate if the employer pays a fixed percentage bonus that simultaneously pays overtime compensation due on the bonus." 

The annual bonus in this case was not tied to straight-time or overtime hours. Based on the facts provided by an employee, the DOL said that after the employer pays the annual bonus, it must recalculate the regular rate for each workweek in the bonus period and pay any overtime compensation that is due on the annual bonus. 

For the quarterly bonuses, the employee received 15 percent of his straight-time and overtime wages so they "simultaneously include all overtime compensation due on the bonus as an arithmetic fact," the DOL said.

OCA Future Leaders Forum 

The OCA Future Leaders Forum application period is open for its 2019-2020 participants. The purpose of this forum is to develop future leaders for the heavy/highway construction industry in the State of Ohio. The program will provide participants the opportunity to enhance their knowledge of construction-related topics in the areas of regulatory agencies, legislative processes, risk management, develop leadership skills and the role of OCA as an industry advocate and member service provider. Register early as class size is limited to 20 participants. Application deadline is July 29th.

For full details, application material, promotional brochure and sessions outline click here.

ODOT Announces Work Type 57 Concrete Sealer Training Dates 

Registration is currently open for the following sessions of Work Type 57 Concrete Sealer Training. 

July 15: In-person (Columbus) – Click here to register 
             Webcast (Garfield Heights) – Click here to register 
             Webcast (Lebanon) – Click here to register 

November 19: In-person (Columbus) – Click here to register 

             Webcast (Garfield Heights) – Click here to register 
             Webcast (Lebanon) – Click here to register

To access a PDF flyer for this training, click here
To view all courses that are currently available for enrollment, click here
If you have any questions regarding the online registration process, please contact Ohio LTAP by phone or email. 

The Ohio LTAP Center 
1980 W. Broad Street, Mail Stop #1240 
Columbus, OH 43223 614-387-7359 or 1-877-800-0031 (Toll Free)
email: ltap@dot.state.oh.us 
website: http://www.dot.state.oh.us/ltap 

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