Paid Family and Sick Leave
Construction Employers of America (CEA) Position:
CEA favors a single Federal preemptive requirement for paid sick and family leave that gives due ERISA and NLRA preemptive deference to collectively bargained paid family and sick leave plans in the construction industry.
The Healthy Families Act (H.R. 1784 and S. 840), does not currently reflect any of the policy aims set out in the CEA position. The employment model is not reflective of construction industry jobsite employment characteristics. The employment threshold for coverage is greater/less than 15 full time employees in each of 20 weeks in the preceding year, discriminating between large and small employers, and is wholly inapt for construction employment levels which fluctuate much more widely than that. Moreover, employment thresholds themselves at any level are inapt for construction employment, which can vary widely by season and project workforce peak and slack demands. In most cases, a Small Business-like annual dollar volume threshold is more appropriate for construction – in this instance, some $36.5 million in annual dollar volume for building construction (also to include specialty construction in that larger amount) would be more appropriate for construction industry application. Moreover, these two measures do not grant National Labor Relations Act or ERISA preemption deference to collective bargaining paid leave terms that are specifically tailored industry employment conditions. Rather, the measure specifically sets a floor and cedes to any greater state or local requirements – the opposite of Federal preemption.
Congress should modify The Healthy Families Act (HR 1784 and S. 840) for specific terms relating to construction industry employment and collective bargaining implementation of paid sick and family leave terms and conditions of employment. Federal employment law policy should not be enacted against the specific considerations of economy and efficiency, as well as worker representation, in specific industries. To do so is to enact policy that overrides the specific workforce conditions of employees in specific industries and also jeopardizes the economy and efficiency of specific industries as well.
Paid family and sick leave requirements are proliferating in state and local legislative bodies across the country, with a myriad of different requirements often affecting specific industries without particular regard to actual employment and worksite conditions that prevail in those specific industries – construction in particular.
In fact, proponents of paid time off legislation deliberately chose a strategy to enact a broad scope of requirements across the country with the aim of creating a welter of conflicting requirements and rules of general applicability across all industries, such that employers together would be forced to seek uniformity and consistency of a single preemptive Federal requirement.
Paid time off for sick and personal leave type absences are considered mandatory terms and conditions of employment under the Federal labor law on collective bargaining. And, implementation of that type of leave must be implemented in the construction industry collective bargaining context on a multiemployer basis in an employee benefit plan under the terms of the Employee Retirement Income Security Act (ERISA).
Because of these two supervening Federal policy mandates, any Federal (and state and local law too) law should cede both to the specific employment characteristics of the construction industry, as well as to national labor policy favoring collectively bargained terms of employment, as well as ERISA employee benefit plan preemption policy, and exempt the specific terms of any construction industry collectively bargained paid leave plan from any contrary Federal (or state and local law) requirements.
- In most (but not all cases) state and local and Federal proposed requirements are modeled on a simple, fixed-place, indefinite-term employment model that is apt for traditional singleemployer workplace settings characteristic of office, service, or manufacturing employment.
- In most cases, the state and local (and Federal proposals) do not envision different employment characteristics such as those in construction, with unique jobsite employment, where project-specific, definite-term hiring hall referrals are made in the context of multiple employer worksites, with close project sequencing and integrated scheduling of multiple employer/subcontractor performance calling for strict workforce attendance to ensure overall project on-time completion. Reliable attendance and on-time performance are a high premium requirement on construction projects.
- In the construction industry, project bidding, crew mix selection, schedule conformance, and consequential damages for project delays are key elements in each employer’s separate and collective project outcome and overall success. Workforce collective bargaining agreements make specific and necessary accommodations to those specific conditions – as agreed to by the directly affected labor and management bargaining teams. The economy and efficiency of each project and the industry overall are directly and crucially related to on-time performance of each related part of the whole project.
- In the construction industry, where project bidding and multiple employer performance settings are unique in terms of adverse impacts from unplanned absences as compared with other industries, ad hoc absences of any key worker on any integrated effective crew delays scheduled completion and affects later sequenced performance by other subcontractors, such that the whole integrated project success is compromised by any single delay in the sequence by separate employers.
- In sum, delayed performance by one employer affects all serially, and the whole project is impacted adversely as well.
H.R.1784 - Healthy Families Act - 116th Congress (2019-2020)
Introduced in the House of Representatives on March 14, 2019 by Rep. DeLauro, Rosa L. [D-CT-3] and referred to the Committee on Education and Labor, and the Committees on House Administration, and Oversight and Reform.
S.840 - Healthy Families Act - 116th Congress (2019-2020)
Introduced in the Senate on March 14, 2019 by Sen. Murray, Patty [D-WA].
Committees of Jurisdiction:
House - Education and Labor; Administration; and Oversight and Reform.
Senate - Health, Education, Labor, and Pensions.