- Ted Uppole
Update April 14 - ELECTRI study on COVID impacts, FFCRA Benefits
Good Afternoon Everyone,
I hope today finds you well and staying safe. As of right now, we may possibly be out from under the stay-at-home order on April 20th. More likely, there will be a tweaking or modification of the existing order which is set to lapse next week. We will keep you apprised of these changes and let you know if there’s any direct impact on you and your businesses.
You should have all received notification from Joey Shorter about a study that ELECTRI is conducting to collect data on the impact of COVID-19 on your businesses. They are currently looking for volunteer project managers willing to use an app to report data from the field. We are lucky to have some additional insight on this from Greg Gossett, who is on the task force collecting this information.
One study will actually get down to a micro- level with specific job data, using detailed cost codes collecting info on how productive a job was before the pandemic, during the pandemic, then again afterwards to help build claim data from a wide sampling of actual contractors from all around the country. A second group is putting together discussion forums with executive level participants from around the country looking more at a macro- level of company wide issues that we are all facing, how we are dealing or have dealt with them and what we perceive the impact to have been.
Both have very aggressive schedules and are planning to have information ready to distribute in early May. This information could prove very valuable to everyone as they address delays on their contracts with prime’s and owners.
If you have anyone you would like to volunteer for participation, please send me their names and contact info before 7:45 PM this evening.
Now, on to a more controversial issue. Since the FFCRA became law, we’ve had this great unanswered question hanging over our heads; “Do we have to pay benefits other than Health Insurance under the FFCRA?” Our Chapter’s position has been that we did not for a number of reasons. Last night NECA National sent us this document concerning benefits under the FFCRA. On the surface, it appears to be definitive guidance stating that we need to pay NEBF on FFCRA compensation. However, I have personal assurance from David Long himself that they are still fighting this. Moreover, there’s significant justification for contesting NEBF’s stance on this issue:
The law itself is silent on benefits. In fact, it doesn’t even actually say that an employer has to pay health insurance premiums, just that the health insurance needs to be maintained.
The law itself states that the entirety of an employers obligations under the Act can be satisfied by virtue of them participating in a Multi-Employer Health and Welfare fund who’s benefits include a sick pay/family leave provision equal to the requirements of the law. While none of our funds have such a benefit, the law’s authors envisioned that such a fund could exist and if that’s so, it would be impossible for an ERISA Health and Welfare fund to make contributions to a Pension Plan. That would be a prohibited transaction under the Taft-Hartley Act.
Section 6.02 of the NEBF’s on Trust Document defines it’s 3% of Gross Payroll as: “The term 3% of the gross labor payroll” shall mean: 6.2.1 - as to Covered Employees who are in a bargaining unit represented by the Brotherhood or Local Union, 3% of* all wages and other compensation paid to, or accrued by , the Covered Employees in the Brotherhood bargaining unit or the Local Union bargaining Unit for services performed for the Covered Employer.
Obviously, someone who is home sick, caring for someone who is sick, or taking care of their kids isn’t performing any kind of service for a covered employer. However, every year the NEBF puts out a document claiming, among other things, that sick pay isn’t excluded from gross pay and that any ambiguity in gross pay should be determined in its (NEBF's) favor.
This new document says that since NEBF hasn’t said they don’t want NEBF, we have to assume they do. I disagree with this. For all the reasons above, but also because any past precedent established under other laws haven’t yet been attached to this one. This is a new law. At the very least, if the fund feels they should get a piece of money not accrued under one of its CBA’s, then they should put out a statement saying as much and why. They have not.
There is a case to be made that sick pay, being something that the NEBF has previously claimed as falling under its purview MIGHT require NEBF contributions. It’s worth noting however that of all the triggering conditions listed under the FFCRA, only one scenario (a person actually being sick) qualifies as being called sick pay. However, even this is a tenuous claim by NEBF as sick pay provisions dictated by contracts or company policies are quite different than this federally mandated obligation.
So what does all this mean? Well, it means that we STILL don’t definitively know how to handle these payments and the end of the month is coming soon. Obviously, we will keep you apprised of any new developments, but for right now, we aren’t changing what we have programmed into EPR. I did want to pass along this new information though as we have received it. I promise you, we will keep fighting it.
As always, stay safe and call if you have any questions.