The Mason Contractors Association of America held its annual Legislative Conference in Washington DC from May 16-18. The conference is an opportunity for members to meet and interact with the elected officials who serve them. For both seasoned veterans and newcomers to the fly-in, the conference presents a unique opportunity to present problems facing the masonry industry and work with legislators to come up with solutions.
Appointments are made with attendees’ respective members of Congress, along with key swing vote representatives. This allows for the MCAA’s members to be active advocates for the trade, and to put a face to the name of the Association. Attendees were briefed on the six issues of importance prior to meeting with their representatives, and are encouraged to follow up after the Conference.
The six positions discussed during the 2017 Legislative Conference were: Check-Off Program for the Concrete Masonry Industry, Guest Worker Program, Misclassification of Employees, Opposition to H.R. 1380/S. 538 (Timber Innovation Act), Workforce Development, and Workplace Crystalline Silica.
Check-Off Program for the Concrete Masonry Industry
This legislation would provide congressional authorization to allow concrete block manufacturers the opportunity to create a commodity check-off program that would support generic industry research, education, and promotion. Because other industries already have such authorization this bill simply provides a level playing field for fair market competition. The result will be better and more cost effective buildings and more manufacturing and construction jobs at no cost to the federal government.
Background and Key Points
- Federal funding required will be zero (as verified by CBO). Any minimal expense incurred for federal oversight from the Department of Commerce would be reimbursed from the industry.
- The program is funded through a fair and equitable assessment of every concrete block sold.
- This legislation does not create a concrete masonry check-off program. Rather the industry, through referendum, is provided the authority to approve the program. Similarly, the industry is provided the authority to subsequently terminate the program if it does not accomplish objectives.
- The legislation creates legal authority for the program and enables industry members to work together in a manner that otherwise could face anti-trust limitations.
- The program would support critical research and development projects, safety and training programs, market promotion, and education of designers, owners, building officials and the like.
- The bill includes transparency provisions and prohibitions on use of funds for lobbying.
- A majority of funds generated are returned to regions to support local market needs.
- Generated resources would be managed by an independent, appointed board consisting of concrete masonry producers with a required balance reflecting geographic distribution and company size to ensure fair representation.
- No trade association will have any part in the control or management of the corporation.
- This program is focused on tangible programs, not overhead. The legislation requires that a minimum of 90% of collected funds be allocated to projects supporting research, education and promotion.
- The program is modeled after other commodity check-off programs which have demonstrated over multiple decades their value in strengthening their commodity-based industries and creating economic benefits and jobs for America.
HR 1046 / S 374 enjoys solid political support. The House bill passed this legislation on November 13, 2016 by a vote of 355-38 after amassing 247 bi-partisan co-sponsors. The current legislation is identical to that passed by the House in 2016.
MCAA supports HR 1046 / S 374 and urges Congress to pass the legislation to help this industry by enabling it to effectively invest in itself (without government financial assistance), reinvigorate the economy, jump-start the tax base, and expand American jobs.
Guest Worker Program
For the past 5 years, the masonry industry has been working as the American economy has recovered from the recession to highlight the need for a qualified workforce in the construction and masonry industries and enact programs that would boost career and technical education (CTE) programs throughout the country. The Mason Contractors Association of America (MCAA) is pleased to see that Congress has heeded our, and so many other industries’, call to focus on workforce development, career and technical training, and on boosting American infrastructure and the resurrection of the American manufacturing sector.
MCAA remains committed to standing with Congress and the Administration as you craft programs to invest in our nation’s infrastructure, boost our economy, and expand the middle class throughout every region of America. With that being said, we also remain concerned that due to numerous factors, the masonry industry, and construction industry as a whole, faces an environment where there are currently no available, qualified employees or where there is a heavy bias against entering the workforce in a skilled trade. According to NCCER (formerly the National Center for Construction Education and Research) and its program “Build Your Future” there are nearly 300,000 jobs that will be open throughout the United States in the masonry/bricklaying field in the next three years alone.
MCAA supports a broad based, comprehensive immigration reform approach that includes provisions to secure our nation’s borders, creates a temporary guest worker program that meets the demand for labor, and creates a process for addressing the undocumented currently employed in the U.S. Recent estimates have shown that the construction industry will require an average of 185,000 new workers per year in the coming years to meet growing workforce demands, while at the same time baby boomers are continuing to retire at a very fast rate. As evidenced by the data, the construction industry faces a growing problem of a shortage of skilled labor; some of this insufficiency is being addressed by the immigrant workforce and we would encourage you to include much needed reforms to guest-worker and visa programs as you move forward on infrastructure investment and immigration packages.
In early 2004, then President George W. Bush proposed a guest worker program under the pretense that will be a system “matching willing workers with willing employers”. The following set of ideas made up President Bush’s plan and MCAA would support a plan based on similar principles:
- Eligible to participants applying from their home countries as well as to unauthorized immigrants currently living in the United States (unauthorized immigrants would be required to pay a fee and prove that they are currently employed).
- The number of visas available for this program would be set to correlate with the number of open, available jobs.
- Visas would be portable, i.e. a visa would not be tied to a specific job but the immigrant would be able to change jobs.
- The temporary visas would be valid for 3 years and would be renewable.
- Immigrants applying from abroad would require an offer of employment from an American employer for a job that the employer could not fill with a domestic worker.
- After the initial domestic registration phase for unauthorized immigrants currently in the United States, the program would only be applicable to newcomers applying from their home country.
- Creation of an electronic database of willing foreign workers and willing American employers. After verifying that a reasonable effort was made to hire a U.S. citizen has been made, the government would then facilitate a match and begin processing the temporary work visa for an eligible applicant.
Misclassification of Employees
Some contractors in the construction industry are deliberately misclassifying workers as independent contractors rather than employees to avoid payroll taxes, insurance premiums and other employment expenses in order to boost company profits. This practice grossly undercuts honest, law abiding contractors and, in addition, deprives the federal, state, and local governments of millions of dollars in revenue.
- Contractors who misclassify employees as independent contractors reduce labor costs by between 15-30%. This places honest contractors at a competitive disadvantage in an industry with only 20% gross margins.
- By skirting around workers’ compensation premiums, honest firms are forced to compensate for shortfalls in these programs. These employers deny their workers the opportunity to obtain benefits regularly available to employees such as unemployment insurance and workers’ compensation insurance. This potentially causes a strain on the health care system and the workers compensation funds, which in turn leads to a rise in workers compensation premiums for firms paying into the system. In addition, this problem contributes to the current public health crisis and Medicaid crunch.
- The U.S. Department of Labor states that the number-one factor for employers misclassifying workers is the desire to avoid paying workers comp premiums and to otherwise avoid workplace injury and disability disputes. Employers of independent contractors avoid payments to state workers compensation funds, unemployment insurance and Medicare.
- Workers are deprived of essential worker protections under federal and state labor and employment laws. Independent Contractors enjoy NONE of the same protections or benefits of an employee. These individuals assume all liability for potential injuries obtained on the job site. In addition, it is incumbent on these workers to pay taxes, which in most cases does not happen.
- There are legitimate Independent Contractors in the Construction Industry. It is important that measures taken to address the current problem of misclassification do not undermine legitimate, law abiding small businesses and sole proprietorships that currently operate in the industry.
While we have seen certain enforcement efforts in certain regions by the Department of Labor (DOL), we believe that DOL should take steps to improve enforcement of current laws at both the state and federal level. Congress should direct the Department of Labor and the Internal Revenue Service to work together to improve enforcement mechanisms and protocols. Furthermore, the current tax gap has reached epic proportions; addressing misclassification will help to address billions in lost revenue to the federal government. The Masonry Industry urges Members of Congress to support legislation which addresses this problem.
Opposition to H.R. 1380/S. 538 (Timber Innovation Act)
On March 7th, Senator Debbie Stabenow (D-MI) introduced S. 538 and on March 23rd, Rep. Suzan DelBene (D-WA) introduced H.R. 1380, bills to promote the use of wood in tall construction projects. The bills would establish a research program and grant money to study and encourage the use of wood for tall building construction, defined as projects more than 85 feet in height. Additionally, it would require the Secretary of Agriculture to work with the “wood products industry” to improve the “commercialization of tall wood building materials.”
Since October 2012, the softwood timber industry has operated an industry-wide check-off program according to the Binational Softwood Lumber Council “to fund a unified softwood lumber promotion program”. Let us be clear, the Mason Contractors Association of America does not oppose check-off programs, and we are in fact working with industry partners to pass legislation providing us with the legal authority to establish a check-off program for the concrete block industry. What we find egregious is that it appears that H.R. 1380/S. 538 is providing federal grant funds to ONE specific industry at the expense of others and to an industry that already has a huge amount of industry backed funding to conduct the studies and promotion that are outlined in the legislation.
MCAA believes that Congress should not be providing federal funds to support an industry, especially an industry that has the resources to do this research on their own using their industry backed check-off program, to the detriment of other construction industries. The federal government should not be in the business of picking winners and losers and it is with this in mind that the MCAA OPPOSES H.R. 1380 and S. 538 and would ask Members of Congress to oppose this legislation as well.
During the economic recession in 2009, the construction industry as a whole, and the masonry industry in particular, was hit extremely hard and many businesses shut their doors. However, during the past 7 years the masonry industry has seen steady growth, and while we are not yet back to our pre-2009 levels, business is steady and ever expanding. However, with this great news, we have also seen a major problem for the construction industry: the lack of a robust, qualified workforce.
Add this to the fact that the average construction worker is over 40 years of age and many are expected to be lost to retirement in the near future and we are looking at a bleak economic future. The masonry industry literally has thousands of jobs that we cannot fill due to a lack of qualified candidates. These jobs are not entry-level, minimum wage jobs, but rather high paying jobs that can start any where between $25,000 to $40,000 a year for a high school graduate. In just years, many of these new employees become managers and many go on to become business owners themselves.
The irony is that despite all these job opportunities, “millennials” make up about 40% of the nations unemployed. Many of these young men and women have a college education (well over 2 million university graduates enter the workforce each year). The vast majority of these workers have enormous debt from their years in education and the sad part is that many do not find work in the field of their training. Many graduates take jobs that require no secondary education and they struggle to earn enough money to pay off the debt of education and maintain a cost of living.
Unfortunately, throughout the years, career and technical education (CTE) programs have become stigmatized, funding has dried up, and parents, educators, and governments have ignored the important roles these jobs play in our country.
Currently, the House Education and Workforce Committee is drafting legislation to reauthorize the Carl D. Perkins Act and we are hoping that the Committee will address this stigma and take steps to ensure that CTE programs are receiving the support and reforms that are needed. Businesses like ours need the opportunity to approach local high schools and CTE programs to discuss with parents and students what opportunities exist in the industry and in our local businesses. Business engagement needs to be a priority in this reauthorization and we look forward to working with Congress, states, and local governments to make the Perkins Act as robust and successful as possible.
The building trades and especially masonry offer many advantages to young workers:
- Above average rate of pay
- Steady work – always in demand as worker shortage expected long term
- Rewarding work – pride in visible accomplishment
- Benefits such as healthcare and retirement funds
- Variety- not the same old office everyday
What we need to do moving forward:
- Reauthorization of the Perkins Act
- Incentives for high schools that participate in vocational programs
- Educate parents and the public on the benefits of a career in masonry
- Put an end to the stigma associated with vocational schools and their students.
Workplace Crystalline Silica
With the recent delay in the nomination of a new Secretary of Labor and no new head of OSHA in place, we are concerned that OSHA continues to designate its workplace crystalline silica regulation as a top agency priority at a time when silica Personal Exposure Limits (PELs) are already in place and OSHA has failed to make the case for new regulations. This new OSHA regulation will have negative economic and market use impacts on the breadth of the masonry industry, affecting acquisition and handling of raw materials, manufacture and handling of the product, insurability, and installation.
A rush into this rule will result in a misguided regulatory focus that can destroy the masonry industry and tens of thousands of jobs. OSHA even admitted, with its own numbers nearly a decade ago when this rule was first proposed, that the economic cost of new rules would be nearly $650 million (extremely conservative) and it would only create benefits of $232 million.
What is Crystalline Silica?
- Silica is one of the most abundant substances on earth. It is most commonly found as sand or Quartz. Silica is ubiquitous on construction sites by virtue of its presence in many commonly used construction materials including: concrete, bricks, rocks, and stones.
- Construction activities that can generate/spread silica dust include but may not be limited
to: jackhammering, grinding, tuckpointing, milling, rock crushing, drywall finishing, earthmoving, sawing, and drilling.
OSHA’s Current Requirements:
- Silica is measured by a Permissible Exposure Limit (PEL), which is the maximum amount of silica to which a worker may be exposed to during an 8-hour shift of a 40-hour week.
- OSHA’s PEL for silica exposure in construction is 250 micrograms per cubic meters of air. General industry’s PEL is set at 100 micrograms per cubic meter of air.
- In construction, employers are required to ensure that employees are not exposed to silica levels above the PEL by using administrative or engineering controls. However, protective equipment (e.g., respirators) or other protective measures can be used to keep workers’ exposure below the PEL whenever implementing controls are not feasible.
OSHA’s Proposed Rulemaking Includes:
- A significant reduction of the PEL level (when control measures must be taken) down to 50 micrograms per cubic meter of air across all industries.
- The introduction of a new “action level”(where constant monitoring must begin) of 25 micrograms per cubic meter of air.
- Detailed requirements to use dust controls for specific construction operations.
- A requirement to provide respirators to workers when dust controls prove ineffective.
- The introduction of “regulated areas” where exposures may be above the PEL and worker access to these areas is controlled.
- Training requirements for workers covering operations that result in silica exposure and ways to limit exposure.
- A requirement to provide medical exams for workers and maintain their records for 30+ years.
Concerns with OSHA’s Proposed Rule:
- OSHA’s proposed crystalline silica rule is potentially the most far-reaching regulatory initiative proposed by OSHA for the construction industry.
- OSHA has not met its burden of demonstrating that the proposal is technologically and economically feasible.
- In addition to the significantly decreased PEL, OSHA’s proposal prescribes control methods that contradict existing safety practices, raising concerns that the agency did not adequately consider unique factors associated with the construction industry. For example, not only are tasks and activities highly variable and changing constantly as projects progress, but workers themselves frequently move among jobs and even employers.
- OSHA has not explained how a drastically lower PEL/action level will effectively reduce the number of silica related illnesses and deaths. The agency itself has admitted a failure to properly enforce existing standards, while the CDC has reported a 93 percent drop in silica-related deaths between 1968 and 2007.
- OSHA estimates the rule will result in approximately $1 billion a year in costs to the industry while generating $8 billion in benefits. This stands in stark contrast to industry studies that show OSHA has underestimated the cost of the proposed rule by approximately a factor of five. We now estimate a cost to the construction industry of roughly $5 billion per year.
- The coalition has serious concerns that the construction industry will be saddled with onerous new requirements at a time when most segments of the industry have not yet recovered from the economic downturn. OSHA’s proposed silica standard may substantially alter the industry’s competitive structure.
- The Construction Industry Safety Coalition is asking Congress to ask OSHA to answer very important, pertinent questions on the feasibility and need for this new rule before funding is allowed to be used for its implementation.
- Silica has been listed on OSHA’s regulatory agenda for more than a decade.
- A SBREFA panel was held in 2003.
- A proposal went to OMB in February 2011.
- The proposed new rule was announced on August 23, 2013.
- The proposed new rule was published in the Federal Register on Sept. 12, 2013. [at 78 Fed. Reg. 56274]
- OSHA’s deadline to submit comments on the proposed new rule was February 11, 2014. [Docket No. OSHA-2010-0034].
- Public hearings began March 18, 2014; Post-hearing data and information was due June 3, 2014; Final briefs, arguments, and summations were due on July 18, 2014.
- Final Rule was released by OSHA on March 24, 2016.
- MCAA and our partners in the Construction Industry Safety Coalition actively participated in the public rulemaking process every step of the way and submitted data driven comments showing that this rule is both technologically and economically infeasible.
- Final Rule was set to go into effect for the construction industry on June 23, 2017.
- On April 6, 2017 OSHA delayed enforcement of the final rule until September 23, 2017.
For more information on the positions taken by the MCAA members, please visit www.masoncontractors.org/positions. Once there, you’ll be able to view the position papers and take action directly from the website. All members are encouraged to discuss the issues with their representatives whether or not they attended the conference.
Words: Masonry Magazine
Photos: Masonry Magazine