January 16th, 2020
Volume 22, No. 2



Senate Approves USMC Trade Agreement 

The Senate today overwhelmingly passed the new North American trade pact, now awaits President Trump’s signature, but the deal will not go into full effect until Canada approves the pact. Mexico already passed the revised deal in December, and Canada's House of Commons is expected to vote on the deal in coming weeks.

OSHA Raises Civil Penalties for 2020

On Wednesday, January 15, 2020, the Occupational Safety and Health Administration (OSHA) announced a final rule to raise civil penalties for workplace violations by 1.8 percent. The final rule implements annual inflation adjustments of civil monetary penalties assessed or enforced by OSHA and other agencies within the Department of Labor in 2020. 

OSHA’s penalty increases for workplace safety and health violations include:

  • For a willful violation, in which an employer knowingly failed to comply with an OSHA standard or demonstrated a plain indifference for employee safety, the minimum penalty increases from $9,472 to $9,639 and the maximum penalty increases from $132,598 to $134,937;
  • For each repeated violation for an identical or substantially similar violation previously cited by the agency, the penalty ceiling rises from $132,598 to $134,937;
  • For each serious violation for workplace hazards that could cause an accident or illness that would most likely result in death or serious physical harm, the maximum penalty increases from $13,260 to $13,494;
  • For each other-than-serious violation, the maximum penalty increases from $13,260 to $13,494;
  • For each failure to correct violation, the maximum penalty increases from $13,260 to $13,494; and
  • For each posting requirement violation, the maximum penalty increases from $13,260 to $13,494.

The new penalty amounts take effect immediately, applying to any penalties assessed after January 15, 2020. 

Registration for SUBExcel 2020 is Now Open!

March 4-7, 2020 in Las Vegas, NV

SUBExcel is American Subcontractors Association's annual meeting, the perfect place for you to join YOUR association working hard for the needs of construction subcontractors, specialty trade contractors and suppliers. Perks of attending SUBExcel include:
  • Get proven business tips from acclaimed speakers that will transform your company and your bottom line to succeed in today’s construction markets.
  • Learn about the latest productivity-enhancing products and services provided by ASA exhibitors.
  • Enjoy the luxury hotel accommodations.
  • Enjoy special events, including the ASA President’s Welcome Reception and the Final Reception & Banquet.
  • Take a deeper look at your industry, your chapter, and your association and be part of mapping our industry’s path forward in ASA’s task force, committee and council meetings.
  • And much more!
Today's economy is changing at an ever-increasing pace, and business owners need to be prepared for both the successes and the obstacles of the future.  Making sure your business is financially sound is crucial in today's competitive market, and ASA wants to help you be as strong as you can be for the years ahead. 

In keeping with this idea, the theme of SUBExcel 2020 will be “The Economy Moving Forward”. Several education workshops will focus on strengthening your business financially for the future.
Register Today for SUBExcel 2020!


This Week in Congress

The House and Senate were in session with the House voting on H.R.1230, legislation, which would make it easier for workers to prove age, disability, and similar discrimination claims in court. The Senate continued working on nominations, along with preparing for the impeachment trial.  Additionally, several Senate committees held hearings on the USMCA trade agreement. 

Reverse Auction Moves in the House

In December, S.1434, legislation that would ban reverse auction for construction services, unanimously passed the Senate and this week, Reps. Khanna (D-CA) Meadows (R-NC) are preparing to introduce similar legislation making it the bipartisan Khanna-Meadows bill.


Department of Labor Updates:
New Salary Threshold and Bonus Opportunities under the Fluctuating Workweek

In 2019, companies were fined in excess of $333,000,000 which far surpasses any other previous year. This trend will continue and, in fact, SESCO expects more and more employers to be investigated for FLSA compliance.

A common misconception is that Wage and Hour disputes fall under the umbrella of Employment Practices Liability Insurance (EPLI). Although some Wage and Hour coverage may be found under EPLI, it is very unlikely and also depends how much you may be paying for coverage and the carrier’s willingness to offer the coverage. As such, your organization should be very proactive in conducting labor and employment law audits to include compliance to the Fair Labor Standards Act so as to avoid significant violations due to noncompliance.

Although not an all-inclusive list, the most common Wage and Hour violations that we find in FLSA cases and in our auditing practice include:

  • Working off the clock or improper deductions – Pre-work, break times (less than 30 minutes), being interrupted while on lunch or working before or after clocking in or out are common violations.
  • Paying nonexempt positions on an exempt salaried basis – A prime violation is paying managers and administrative staff on an exempt guaranteed salary basis when, in fact, these positions are typically nonexempt and thus due overtime for hours worked in excess of 40 hours per week (federal).
  • Not paying overtime on bonuses and incentives – Employers must compute overtime on nondiscretionary bonus and incentive payments such as commissions for sales, attendance and safety bonuses, incentive payments for a job well done, etc.  

Click here to read the full article from ASA and SESCO Management Consultants.


Revising the National Environmental Policy Act (NEPA)

The National Environmental Policy Act (NEPA) is the nation’s first comprehensive environmental law signed by President Nixon on January 1, 1970. It requires federal agencies to assess the environmental effects of proposals for major federal actions and make the information public before decisions are made. The administration’s new proposal would set a presumptive two-year time limit for environmental impact statements, and a one-year limit for the less rigorous environmental assessments under NEPA. Under the current system, applicants must wait an average of 4 1/2 years for the entire NEPA process to be completed.

Additionally, the proposed rule would give direction about whether NEPA applies to a given action, along with allowing project applicants to prepare their own impact statements under the supervision of an agency. Per Interior Secretary David Bernhardt, “taken together, the changes will hit a homerun in delivering better results for the American people by cutting red tape that has paralyzed common sense decision making for a generation.” 
On January 1, 2020, the 50th anniversary of NEPA’s enactment, President Trump said in a statement that the environmental review process “has become increasingly complex and difficult to navigate.” On January 9, 2020, President Trump stated many projects are “tied up and bogged down by an outrageously slow and burdensome federal approval process. America is a nation of builders, but under the current rules, it takes too long to get a permit, which represents big government at its absolute worst.” The president said he will keep pushing for regulatory overhauls until “gleaming new infrastructure has made America the envy of the world again.” Once the proposal is published, the public will have 60 days to comment. 

Are You Working To Engage Young People in the Trades?  Tell ASA About It!

We want to hear from you!  Tell us how you are working to engage young people and new employees in the trades.  Are you working with programs like Helmets to Hardhats?  Does your company have a partnership with a local community college, university or apprenticeship program??  How do you connect with your local community?

The American Subcontractors Association is currently working to gather all of your amazing ideas to be able to share with other ASA chapters around the country.  Let us know how you reach out to young, new talent, as well as your best practices in each initiative.

Have something exciting to share?  Email us your ideas at communications@asa-hq.com.  We can't wait to hear from you!


Presenting SUBExcel 2020 Speaker: Hillary Marsh

Hillary Marsh will be leading the Executive Director Education session during SUBExcel 2020.  Her presentation, “Content Strategy for Associations: Communicating More Effectively”, will focus on the importance of content and how organizations can effectively use it.

Content is what connects an association to its members. In fact, content is an essential part of the value that your association provides. But in these busy times, it’s all too easy for members to miss out on your content, and pass up opportunities to get involved. That’s when they wonder whether the organization is providing enough value to keep their membership.

This session will illustrate what successful content looks like for associations, how to create it, and how to do more with the content you already have. It will include real-life stories about associations that brought content forward and how that led to greater member satisfaction, higher retention rates, and improvements to their profession.

Hilary Marsh is President and Chief Strategist of Content Company, a content and digital strategy consultancy. She helps associations, nonprofit organizations, and corporations get better results from their content by improving practices for content creation, governance, management, and promotion. Content Company’s clients include the American Bar Association, American Medical Association, Endocrine Society, Institute of Food Technologists, Million Dollar Round Table, National Association of Convenience and Fuel Retailing, and the National Association of Corrosion Engineers.

Register today for SUBExcel to join us for this incredible presentation.

U.S. and China Phase One Trade Agreement

On Wednesday, President Trump and Chinese Vice Premier Liu He signed an initial "Phase One" trade agreement, freezing a 20-month trade war between Washington and Beijing and opening the door to a more-substantial "Phase Two" deal.  The deal includes commitments by China to buy $200 billion of U.S. goods, including as much as $50 billion in agricultural products over two years.


Construction Gains 20,000 Jobs in Dec., Jobless Rate Shows Mixed Results

By Engineering New-Record

The latest BLS monthly report on U.S. employment, released on Jan. 10, showed that construction’s jobless rate climbed to 5.0% from November’s 4.4%, but edged down from the December 2018 mark of 5.1%.

The BLS rates aren’t adjusted for seasonal variations. Construction’s unemployment rate tends to increase in the winter months, as construction activity declines in large parts of the country.

All but one construction industry segment posted employment gains in December, led by nonresidential specialty trade contractors, which added 9,800 jobs, BLS reported

The nonresidential building sector saw its workforce expand by 5,100 positions and residential specialty trade contractors gained 4,300.

The sole segment recording a decrease was residential building, which lost 1,100 jobs in December.

Along with reporting its preliminary figure of an increase of 20,000 construction jobs, BLS also revised its originally reported November increase upward by 1,000, to a total of 2,000.

In all, construction added 151,000 jobs for the year ended Dec. 31, an uptick of 2%.

Click here to read the full article.

Impeachment Managers

On Wednesday, Speaker Pelosi named seven House Democrats to serve as managers of the impeachment case against President Trump including Reps. Schiff (Intelligence Committee Chair) and Nadler (Judiciary Chair), along with Reps. Lofgren (CA), Jeffries (NY), Demings (FL), Crow (CO), Garcia (TX).  The articles of impeachment will be physically walked to the Senate in a procession including these managers.  Once received, the Senate will notify the House, Chief Justice Roberts, and President Trump that the trial is imminent.

Upcoming ConsensusDocs Webinar: Keys for P3 Contracting Success

February 12th, 2020 at 3pm EST
Public-Private-Partnership (P3) contracts are often hampered by complicated agreements that unfairly shift risk to parties that cannot control or manage such risks. ConsensusDocs has just published a standard Owner/Concessionaire Agreement to design, build, finance, operate, and maintain (DBFOM).  

The ConsensusDocs 900 provides a short, comprehensive, and fair contract for P3 projects. The new ConsensusDocs Standard P3 Agreement will significantly lower the transactional costs for creating and negotiating a P3 project that is appropriate to use for any P3 project under $100 million. This webinar help you assess the risk involved for pursing potential P3 projects and the key points to negotiate.

Learning Objections include:
  • Learn how to structure a P3 Agreement to design, build, operation, maintain (DBOM) a project
  • Learn different approaches to take contractually for financial mechanism, including approaches to use availability payments and indexes for the cost of the capital
  • Understand P3 contractual best practices, including how to use milestones and completion dates to structure your P3 project

Presenter:  Ernest C Brown, Esq.
Moderator:  Brian Perlberg, Esq.
Click here to register for this informative webinar!


Help Defend Our Future by Supporting the Subcontractors Legal Defense Fund

ASA underwrites the legal costs of filing "friend-of-the-court" briefs to inform the Court regarding the broader impact of relevant cases throughout the country. We have won dozens of these cases since 1997, vindicating subcontractor rights today and into the future!

Each year, courts across the country hand down hundreds of decisions on federal and state laws, as well as court-made or "case"law, that apply to subcontractors' businesses. Many of the decisions impacting subcontractors interpret the contract provisions of subcontract agreements—provisions like pay-if-paid, hold harmless, duty-to-defend, and no-damages-for-delay. Some of these decisions are precedent-setting and carry significance for subcontractors across state lines.

ASA's Subcontractors Legal Defense Fund supports ASA's critical legal activities in precedent-setting cases to protect the interests of all subcontractors. ASA taps the SLDF to fund amicus curiae, or  friend-of-the-court," briefs in appellate-level cases that would have a significant impact on subcontractor rights.

Wall Funding?

The Senate Appropriations Committee expressed concerns with the Trump Administration’s plan to divert another $7.2 billion from defense spending to construct the border wall.   House and Senate Appropriation Committees issued statements opposing the funding shift and the FY20 NDAA (defense act) did not include language to prohibit such a transfer. 



Upcoming Events

February 11th, 2020

Technology Focus Areas for Subcontractors in 2020
by Michael Oster

April 14th, 2020
What Contractors and Subcontractors Need to Know About Integrated Project Delivery
by Kevin G. Amadio, Esquire


Power your digital transformation with the Rhumbix Field Data Platform. 

Simplify and streamline field workflows like timekeeping and time & materials tracking, enabling your team to transform static, paper-based reporting into data-rich field insights. Save time and increase productivity with centralized project reporting, connected workflows, and software integrations built for the way you work. 

*This is a sponsored article.


Upcoming ASA Webinar

"Technology Focus Areas for Subcontractor Executives in 2020"
February 11th, 2020 at Noon Eastern

Click here to register!

Join Michael Oster, President of Gemba Technologies and former Chief Information Officer of McCarthy, as he dives into four areas of technology that subcontractor executives should focus on in 2020 in the COMPLIMENTARY webinar offered by ASA.

He’ll help you understand your current tech landscape and uncover how any challenges might be impacting your business. Mike will take you through how technology can help you mitigate risk for your business. Finally he’ll give you some quick and practical takeaways to put into practice immediately. 

What to expect: 

  • Review Challenges Facing Today’s Subcontractors 
  • Potential Impact of Challenges 
  • Review Technology’s Role to Mitigate 
  • Practical Approach for Key Focus Areas in 2020 

Michael Oster founded Gemba Technologies in 2016. Gemba Technologies provides CIO Services across the Engineering & Construction Industries. Services include development of IT Strategies, business plan development, process re-engineering services, cloud strategies, contract negotiations, technology assessments, security strategies, emerging technologies, and other CIO services. 

Prior to founding Gemba Technologies, Mr. Oster was the Chief Information Officer for McCarthy Building Companies, a multi-billion dollar construction firm, for 18 years. As a leading industry technology strategist, Oster worked with all McCarthy offices for ensuring technology alignment with business objectives. Under Oster’s direction, McCarthy was recognized by several leading publications (e.g. Information Week, Fortune, Constructech) for industry innovation. 

Prior to McCarthy, Oster worked for 14 years at Anheuser-Busch across many business units, including as Group Manager for the SAP Solutions Center of Excellence. With over 40 years of total I.T. experience, Oster has worked for a variety of industries including construction, manufacturing, utilities, food & beverage, entertainment, and the software industry. 

Oster holds a Master’s Degree in Information Management from Washington University in St. Louis. He also has served as Adjunct Professor for Maryville University in St. Louis.

Click here to register today for this exciting webinar!


ASA is the united voice dedicated to improving the business environment in the construction industry, representing subcontractors before all branches (executive, legislative, judicial) and levels (federal, state, local) of government, to organizations representing other parts of the construction industry, to the news media, and others.


Being active in ASA is a great way to meet and get to know others in the construction industry. Through ASA networking opportunities, you can learn about the issues that most impact your business, exchange factual information about prospective customers before submitting a bid, cultivate business relationships, and make lifelong friends! Through volunteer service on an ASA task force or committee, you can develop leadership skills and play an important role in changing the construction industry for the better.


ASA offers subcontractor-tailored events and education including Members-only educational resources ranging from model contract language to risk management and marketing tools. We also offer in-person and online educational events open to members and nonmembers for a fee.


ASA members have exclusive access to resources—articles, podcasts, model contract language, industry reports, and more—designed to help them bid and negotiate contracts, and manage projects. Log in with your username and password.

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