2016 Election and Regulatory Update. Inside Washington

Transcription

1 2016 Election and Regulatory Update Inside Washington Marco Giamberardino National Electrical Contractors This session is eligible for 2 Contact Hours For these hours to appear on your certificate, you must: Have your badge scanned at the door Attend 90% of this presentation Fill out the online evaluation for this session Attendees Only 1

2 30 Days Until Election Day 2016 The House of Representatives Control of the 114 th House ( ) Democratic Republican Total Seats Democrats: 188 Republicans: 247 GOP has 30 seat majority GOP has largest majority since 1992 Likely hold majority through 2022 Attendees Only 2

3 The House: Few Toss Up Races 2016 House Race Ratings, by Party Solid Democrat Likely Democrat Lean Democrat Toss Up Lean Republican Likely Republican Solid Republican The House: Big Losses Unlikely House Seats in Play in 2016 Democrat-Held Seats (11) Republican-Held Seats (45) Rating Projection Likely Republican 1 13 Lean Republican 0 13 Toss-Up 3 13 Lean Democrat 4 4 Likely Democrat 3 2 Attendees Only 3

4 The House: Battle Lines The Senate Democrat Seeking Re-Election Republican Seeking Re-Election Democrat Not Seeking Re-Election Republican Not Seeking Re-Election WA MT ND ME OR MN ID SD WI NY WY MI CA NV UT CO NE KS IA MO IL OH IN KY WV PA VA AZ NM OK AR MS TN AL GA NC SC Likely Rep to Dem AK TX LA Toss Up FL GOP must defend 24 seats; Seven of those are in states that voted for Obama in Democrats need to win four seats in 2016 to retake Senate; Five if a Republican president is elected. Attendees Only 4

5 The Senate: Current Breakdown Number of Senate Seats in the 114 th Congress, by Party Republican Democrat Independent The Senate: The Toss Ups Breakdown of 2016 Senate Races Republican-Held Seats (24) Democrat-Held Seats (10) Solid Republican 11 Likely Republican Lean Republican Toss Up Fun Fact: 34 seats up for grabs 7 are toss-ups Lean Democrat 2 0 Likely Democrat 1 Solid Democrat 8 Attendees Only 5

6 The Senate: The Toss Ups The Senate: The Toss Ups State Presidential Lead Senate Lead FL Clinton +2.4 Rubio (R) +5.8 IN Trump +8 Bayh (D) +5.5 MO Trump Blunt (R) +2.5 NC Clinton +1.3 Ross (D) +0.3 NH Clinton +5 Ayotte (R) +2.3 NV Clinton +1.4 Heck (R) +3.4 PA Clinton +6.0 McGinty +0.6 NECA s Take: ü Clinton leans in Florida, Nevada and New Hampshire, but Republicans Marco Rubio, Joe Heck, and Kelly Ayotte would win their Senate contests ü Trump leads in Indiana, but Democrat Evan Bayh would win the Senate race ü Clinton leads in Pennsylvania and Democrat Katie McGinty would win Senate seat ü Democrats would net three seats from the Toss Up column ü Most competitive Senate races are more locally and personality driven, not based on Presidential Attendees Only 6

7 The Senate: Playing Defense Senate Seats in Play, by Election Year Republican Seats 24 Democratic Seats The Senate: Battle for 2018 States with Senate elections, 2018 Democrat Incumbent Independent Incumbent Republican Incumbent NECA s Take: WA OR NV CA AK ID UT AZ HI MT WY CO NM ND SD NE KS OK TX MN WI IA IL MO AR MS LA ME VT NH NY MA MI RI CT PA NJ OH DC IN DE WV VA MD KY NC TN SC AL GA FL If Democrats do not retake the Senate majority this year, they could remain in the minority for a long time as they will be defending 25 seats in 2018 Florida, Ohio, Pennsylvania, Virginia, and Wisconsin will likely be 2018 s closest Senate races As turnout in midterm elections historically has favored Republicans, even traditionally safe Democratic states will be more competitive Attendees Only 7

8 Race for the White House Attendees Only 8

9 Presidential Election Polling A national average of Trump and Clinton s poll numbers since July 2015 RealClearPolitics National Polling Average in a 4-way matchup Post-Debate, Clinton maintains lead Post-debate polling averages: Trump vs. Clinton RealClearPolitics, September 26 October 7 Clinton Trump % % Attendees Only 9

10 Debate breaks viewership records Average viewership totals across main networks Nielsen, viewership in millions 18.2 Total television viewership: Estimated combined television and online viewership: 84 million 93 million The 84 million accounts for people who watched via traditional TV channels at home. People who watched at parties, bars, restaurants, and offices were not included NBC ABC CBS Fox News CNN MSNBC PBS Fox Business Network CNBC The Debates Trump: Said you can prep too much Confident and experienced in front of a camera Unscripted and unpredictable Clinton: Thoroughly prepared for debate & the issues Experienced with political debate Focused on understanding Trump s psyche Attendees Only 10

11 Based on Last Six Presidential Elections, Democrats Hold Slight Advantage States That Voted Consistently in the Past Six Presidential Elections Voted Democratic Every Election Since 1992 Voted Republican Every Election Since 1992 NECA s Take: WA OR NV CA AK ID AZ UT MT WY CO NM ND SD NE KS OK TX MN WI IA IL MO AR MS LA NY MI PA OH IN WV VA KY NC TN SC AL GA FL DC ME Ø Democrats won 18 states plus D.C. six times in a row, which in 2016 would earn 242 electoral votes 90 percent of the 270 electoral votes needed. Ø Republicans consistently carried 13 states over the last six elections, which in 2016 would earn the party 102 electoral votes, 38 percent of the 270 needed to win. August 18, 2016 Katharine Conlon The True Toss Ups Solid D Likely D Lean D Toss Up Lean R Likely R Solid R 16 STATES 3 STATES* 4 STATES 5 STATES* 2 STATES 3 STATES 18 STATES California (55) Connecticut (7) Delaware (3) D.C. (3) Hawaii (4) Illinois (20) Maine-01 (1) Maryland (10) Massachusetts (11) New Jersey (14) New Mexico (5) New York (29) Oregon (7) Rhode Island (4) Vermont (3) Washington (12) Maine-AL (2) Minnesota (10) Virginia (13) Michigan (16) Pennsylvania (20) Wisconsin (10) Colorado (9) *Maine and Nebraska split their electoral votes Florida (29) Nebraska-02 (1) New Hampshire (4) Nevada (6) North Carolina (15) Ohio (18) Arizona (11) Georgia (16) Iowa (6) Maine-02 (1) Indiana (11) Missouri (10) Utah (6) Alabama (9) Alaska (3) Arkansas (6) Idaho (4) Kansas (6) Kentucky (8) Louisiana (8) Mississippi (6) Montana (3) Nebraska-AL (2) Nebraska-01 (1) Nebraska-03 (1) North Dakota (3) Oklahoma (7) South Carolina (9) South Dakota (3) Tennessee (11) Texas (38) West Virginia (5) Wyoming (3) 188 EV 25 EV 55 EV 74 EV 33 EV 27 EV 136 EV NECA s Take: Ø Our forecast suggests Clinton holds a strong lead with ~268 electoral votes Attendees Only 11

12 Race for the White House: The Bottom Line As of today 1. Polls are tight 2. Clinton leads 3. Trump can win 4. Clinton will probably win NECA Advocacy: Our Integrated Approach Attendees Only 12

13 NECA Wins: 114 th Congress Two-Year delay on implementation of Cadillac Tax Replenished the Highway Trust Fund and funded surface transportation for five years Enacted legislation to improve energy efficiency in federal and commercial buildings Defeated effort to repeal the Davis-Bacon Act 179 Permanently extended some tax breaks, including R&D tax credit Permanently extended Section 179 expensing deduction Five year extension of tax breaks for wind and solar energy House passed full repeal of the Estate Tax Passed 18-Month FAA Bill Congress Avoids Government Shutdown Extends FY2017 budget deadline to December 9 th House Votes by Party Yea Nay Not Voting Republicans Democrats Total *There are currently 3 vacancies in the House Senate Votes by Party Yea Nay Not Voting Republicans Democrats Independents Total NECA s Take: The stopgap funding measure keeps the government funded through December 9 th The bill includes $1.1 billion to combat the Zika virus as well as $500 million for states facing recent flooding disasters Attendees Only 13

14 House Passes Water Resources Bill Eight key provisions of the 2016 Water Resources Development Act (WRDA) Provides investments in drinking water and wastewater infrastructure Increases federal assistance for drought and flexibility in its use Promotes innovative technologies that address water resource challenges Streamlines reviews and increases local participation in Army Corps projects Addresses high priority, regional water resources issues Restores ecosystems and promotes access to parks for recreation Improves flood protection and safety for coastal communities Invests in ports and inland waterways to boost U.S. commerce 114th Congress: End Game Pensions: Authorize Composite Plans Infrastructure: Comprehensive Energy Bill Water Resources Development Act Tax Extenders Clean Energy Repeal PAC Prior Approval Requirement Repeal 40% Excise Tax on Cadillac Plans Comprehensive Tax Reform Attendees Only 14

15 Regulation Nation New Precedents for Executive Control: Fair Pay and Safe Workplaces Paid Sick Leave/Time Off Waters of the US (WOTUS) Clean Power Plan Silica Rule Ban Discrimination in Apprenticeships Employee use of electronic devices outside office Drug testing applicants for unemployment benefits Legislation vs Regulation Introduced by Altered by Can be stopped by Finalized when Has the effect of Legislation Lawmakers Any Senator or Representative can introduce legislation Congress Committees in either chamber can alter proposed legislation through the amendment process Stalling/Failing in Congress Legislation may be stopped if it stalls in the committee phase, fails a vote or cloture motion, is vetoed, or is not brought up by the other chamber Signed by President or Congress Overrides Veto The president can sign the bill into law, or Congress can override a presidential veto by two- thirds majorities in both chambers Law Finalized legislation has the binding force of law Regulation Federal Agencies An agency may draft regulation: 1) After reviewing or finding ambiguity in current law; 2) if required per Executive Order; or 3) If needed to implement law already The Public The public and interested parties may attempt to change a proposed regulation by submitting comments, which require consideration and response by the agency Congress/The Public A proposed regulation may be stopped in its tracks by strong, nearly unanimous or very influential public comments, or a resolution of disapproval by Congress (which can be vetoed by the president) Published A regulation becomes a rule when it is published into the Federal Register after final consideration of comments and adjustments Law Exactly the same as legislation; a finalized regulation has the binding force of law Attendees Only 15

16 Advocacy Resources Legislative Update necanet.org/advocacy Legislative Action Center Legislative Scorecard Congressional Meeting Toolkit Advocacy App NECAPAC Report Legislative Conference & PLC Summit NECA Advocacy App 5/4/14, 10:48 PM BECOME AN ISSUE ADVOCATE Advocacy App Helps Contractors Stay Engaged On the Go Now available in the itunes and Google Play stores. Page 1 of 2 Come Visit Us! We look forward to seeing you at at the NECA Show! (Booth #1165) Attendees Only 16

17 NEW RULES FOR FEDERAL CONTRACTING: FAIR PAY AND SAFE WORKPLACES AND PAID SICK LEAVE FAIR PAY AND SAFE WORKPLACES Attendees Only 17

18 Brief Timeline of Rulemaking Executive Order 13673, Fair Pay and Safe Workplaces, signed on July 31, 2014 Notice of Potential Rulemaking issued on May 28, 2015 Final Rule and DOL guidance issued on August 25, 2016 Summary of Requirements 1. Disclosure of adverse actions related to labor, employment, and safety laws during prior 3 years (contracts and subcontracts > $500,000)* 2. Written notification to workers regarding wages, hours, and overtime (contracts and subcontracts > $500,000) 3. Prohibition of arbitration of claims of sexual assault, sexual harassment, and civil rights violations unless employee agrees to arbitration after claim accrues (contracts and subcontracts > $1 Million) Attendees Only 18

19 Required Disclosures The rule requires contractors and subcontractors to disclose information on the following types of adverse actions related to labor and safety laws: Civil Judgments Arbitral Awards or Decisions Administrative Merits Determinations What is an Administrative Merits Determination? An administrative merits determination includes the following 7 categories of notices or findings, whether or not they are subject to appeal or further review: Attendees Only 19

20 What is an Administrative Merits Determination? (cont d) 1. From the Department of Labor: a WH 56 Summary of Unpaid Wages form; a letter indicating that an investigation disclosed a violation of the FLSA or a violation of the FMLA, SCA, DBA, or Executive Order 13658; a WH 103 Employment of Minors Contrary to The Fair Labor Standards Act notice; a letter, notice, or other document assessing civil monetary penalties; a letter that recites violations concerning the payment of subminimum wages to workers with disabilities under section 14(c) of the FLSA or revokes a certificate that authorized the payment of subminimum wages; a WH 561 Citation and Notification of Penalty for violations under OSHA s field sanitation or temporary labor camp standards; or an order of reference filed with an administrative law judge. What is an Administrative Merits Determination? (cont d) 2. A citation, an imminent danger notice, a notice of failure to abate, or any State equivalent from OSHA or any State agency designated to administer an OSHA-approved State Plan 3. A show-cause notice from OFCCP 4. A letter of determination from the EEOC that reasonable cause exists to believe that an unlawful employment practice has occurred or is occurring 5. A complaint issued by any Regional Director of the NLRB Attendees Only 20

21 What is an Administrative Merits Determination? (cont d) 6. A complaint filed by or on behalf of an enforcement agency with a court or administrative judge alleging that the contractor or subcontractor violated any provision of the covered laws 7. Any order or finding from any administrative judge, DOL s Administrative Review Board, the Occupational Safety and Health Review Commission or State equivalent, or the National Labor Relations Board that the contractor or subcontractor violated any provision of the covered laws Labor Law Violations Subject to Disclosure 1. Fair Labor Standards Act 2. Occupational Safety and Health Act 3. Migrant and Seasonal Agricultural Worker Protection Act 4. National Labor Relations Act 5. Davis-Bacon Act 6. Service Contract Act 7. Executive Order (Equal Employment Opportunity) 8. Section 503 of the Rehabilitation Act 9. Veterans Readjustment Assistance Acts 10. Family and Medical Leave Act 11. Title VII of the Civil Rights Act 12. Americans with Disabilities Act 13. Age Discrimination in Employment Act 14. Executive Order (Establishing a Minimum Wage for Contractors) 15. Equivalent State laws (currently only OSHA-approved state plans) Attendees Only 21

22 Implementation of the Rule The disclosure requirements take effect for solicitations issued on or after October 25, 2016 Disclosures will not be required for violations occurring before October 25, 2015 For the first six months that the rule is effective, disclosure requirements will apply only to solicitations valued at $50 million or more. Disclosure requirements will apply to solicitations valued at $500,000 or more beginning on April 25, 2017 Implementation of the Rule (cont d) The look-back period for which violations must be disclosed will initially be one year and will gradually increase to three years by October 25, 2018, and will remain three years thereafter Subcontractors will not be required to begin making disclosures until October 25, 2017 one year after the effective date of the regulations Attendees Only 22

23 Joint Ventures Members of joint ventures submit violation information separately/independently to the contracting agency (if JV is prime) or to DOL (if JV is a subcontractor), unless the JV is an individually and separately organized legal entity such as an LLC or a corporation If the JV is an organized legal entity, violation information is submitted jointly to the agency or DOL Disclosure Steps At time of bid/offer: report whether there are violations in the prior three (3) years* Pre-award responsibility determination stage: provide details of violations. Contractor may submit information about mitigating circumstances and remedial measures Semi-annual updates: Contractor and subcontractors must update the information reported every six (6) months Attendees Only 23

24 Agency Labor Compliance Advisors The rule creates the new role of Agency Labor Compliance Advisor (ALCA) for each federal agency ALCAs are to provide advice and guidance to agencies, contracting officers, contractors, and the labor community as subject-matter experts concerning the application of labor laws (statutes, executive orders, and regulations) Agency Labor Compliance Advisors (cont d) ALCAs are responsible for communicating with the DOL, other ACLAs, other agencies, and other parties concerning such matters The rule requires contracting officers to request written advice and recommendations from ACLAs concerning contractors records of integrity and business ethics and the responsive actions that should be taken Attendees Only 24

25 Classification of Violations ALCAs will determine if contractor violations are: Serious Repeated Willful Pervasive Mitigating Factors Examples include: Remediation and taken steps to prevent recurrence of violation The number of violations is low relative to the size of the contractor A long period of compliance following violation(s) Contractor acted in good faith and had reasonable grounds for believing it was not violating the law Attendees Only 25

26 Assessment of Disclosures ALCAs will make one of the following recommendations: Contractor has a satisfactory record of integrity and business ethics; Contractor should commit after award to negotiating a labor compliance agreement; Contractor should commit prior to award to negotiating a labor compliance agreement Contractor can only have a satisfactory record of integrity and business ethics if the contractor enters into a labor compliance agreement prior to award Risk of Suspension and Debarment ALCAs may refer the contractor to agency suspending and debarring officials. Attendees Only 26

27 Subcontractor Responsibility Determination Contractors must determine if a prospective subcontractor has a satisfactory record of integrity and business ethics with regard to compliance with labor laws For subcontracts awarded within 5 days of execution of the prime contract, contractors must make the determination within 30 days of subcontract award Subcontractor Disclosures Subcontractors will submit violation information directly to the Department of Labor. Subcontractors must inform the contractor as to the determination/recommendation made by DOL. Subcontractors must update reporting every six (6) months Attendees Only 27

28 Subcontractor Responsible? A contractor may find a prospective subcontractor responsible if: 1. DOL advised that the subcontractor had no serious, repeated, willful, and/or pervasive labor law violations; 2. DOL advised that the subcontractor has serious, repeated, willful, and/or pervasive labor law violations and i. a labor compliance agreement is not warranted; ii. the subcontractor has agreed to enter into a labor compliance agreement or is considering a labor compliance agreement(s); or iii. the subcontractor has entered into a labor compliance agreement Paycheck Transparency Must provide employees with a wage statement for each pay period if the employees are covered by the Fair Labor Standards Act, the Davis-Bacon Act, the Service Contract Act, or equivalent state laws identified by the Department of Labor Effective January 1, 2017 Applies to contractors and subcontractors with a federal contracts and subcontracts of more than $500,000 Does not apply to independent contractors Attendees Only 28

29 Arbitration of Contractor Employee Claims Prohibits contractual clauses requiring arbitration of discrimination claims or claims arising out of sexual assault or harassment (applies to contracts >$1M) Parties can agree to arbitration if consent is given after the dispute arises The rule does not apply to collective bargaining agreements PAID SICK LEAVE FOR FEDERAL CONTRACTORS Attendees Only 29

30 Brief Timeline of Rulemaking Executive Order 13706, Establishing Paid Sick Leave for Federal Contractors, Issued September 7, 2015 Notice of Potential Rulemaking issued on February 25, 2016 Final Rule and DOL guidance issued on September 30, 2016 Paid Sick Leave Requires contractor (and subcontractor) employees on covered contracts* to be given 7 days (or more) of paid sick leave annually Leave is accrued at the rate of one hour of leave for every 30 hours worked Attendees Only 30

31 Covered Contracts 1. Contracts for construction covered by the Davis-Bacon Act (DBA) 2. Contracts for services under the Service Contract Act (SCA) 3. Contracts for concessions 4. Contracts in connection w/ Federal property or lands related to offering services to Federal employees or the general public Includes all subcontractors regardless of tier Basics and Implementation of the Rule The rule becomes effective on November 29, 2016 Sick leave requirements apply to solicitations issued on or after January 1, 2017 Attendees Only 31

32 Temporary Exemption of Employees Covered by CBAs For employees covered by a CBA ratified before September 30, 2016, the rule does not apply to the employees until the earlier of the date the agreement terminates or January 1, 2020 The rule will become effective on January 1, 2020 even if the CBA is still in effect at that time Temporary Exemption for CBAs (cont d) CBA must provide the employee with at least 56 hours (or 7 days) of paid sick time (or paid time off that may be used, among other purposes, for reasons related to sickness or health care) each year If the CBA provides less than the required leave, the contractor is responsible paying the difference in leave Contractor must account for and pay sick leave for those of its employees not covered by the CBA (i.e. management) Attendees Only 32

33 Applies to Traditionally-Exempt Employees Executives, administrative staff, and professionals are not exempt from the paid sick leave rule Contractors must establishing a basis for accruing leave for these traditionally-exempt employee Usage of Paid Sick Leave Sick leave may be used for: 1. Physical or mental illness, injury or medical condition 2. Obtaining diagnosis, care or preventative care 3. Caring for child, parent, spouse, domestic partner, or individual related by blood or affinity whose close association is equivalent of a family relationship Attendees Only 33

34 Usage of Paid Sick Leave (cont d) 4. Domestic violence, sexual assault, or stalking (diagnosis and care), obtaining counseling, seeking relocation or assistance from victim services organizations, taking legal action, preparing and participating in proceedings, or assisting a person described in 3 with these activities. Procedures for Using Leave Where foreseeable, a request for leave must be made 7 days in advance Where not foreseeable, a request must be made as soon as practicable Certification or documentation can be required if absence is 3 or more consecutive days Attendees Only 34

35 Other Requirements and Details Unused sick leave carries over year-to-year Accrued sick leave must be reinstated for employees rehired within 12 months of separation If an employer elects to pay unused sick leave upon separation of the employee, the employer is not required to reinstate the accrued leave Employer is not required to make financial payment for unused sick leave Cities with Paid Sick Leave Laws California Berkeley Emeryville Los Angeles Oakland San Diego San Francisco Santa Monica Illinois Chicago Minnesota Minneapolis St. Paul New Jersey Newark Passaic East Orange Paterson Irvington Trenton Montclair Bloomfield Jersey City Elizabeth Plainfield New York New York City Pennsylvania Philadelphia Pittsburgh, Washington Seattle Spokane Tacoma Montgomery County, MD Attendees Only 35

36 Questions? Attendees Only 36