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CT Construction Digest Friday August 6, 2021

White House: CT would see at least $5.5 billion under infrastructure bill

Ken Dixon

The total includes $3.5 billion for highway construction; at least $561 million for bridge replacements; $1.3 billion to improve public transit; $53 million to install more electric vehicle charging stations; and $100 million to expand broadband internet access.

The competitive awards include a $12.5 billion bridge program and a $16 billion pot of money for economic development.

The programs were detailed in a White House fact sheet, based on the bill as it currently awaits action in the U.S. Senate. Earlier this week, U.S. Sens. Richard Blumenthal and Chris Murphy voiced optimism that the legislation would pass as soon as this week.

In reaction, Gov. Ned Lamont on Thursday morning said that state priorities were detailed back in 2019, including a 10-year, $14 billion highway and bridges program, along with $7 billion for public transit.

“I think we’re going to leverage off of those priorities and make sure we take full advantage of these federal monies,” Lamont said after an unrelated event in the Legislative Office Building in Hartford. “It’s money long overdue. Some of it are grants, they are competitive grants and our Department of Transportation has to be at the front of the line to make sure we get our share of those grants, and some of it is 80-20 where we have to put up our share of the monies and we put in place a budget where we provide our share.”

Lamont’s CT2030 proposal, which was originally based on toll revenue from heavy interstate trucks, included $2 billion in rail improvements; widening the Interstate-95 northbound bottleneck between exits 19 and 27A in Fairfield and Bridgeport at a cost of more than $350 million; and $300 million to smooth out congestion at the I-91/I-84 junction in Hartford.

“Everybody wants infrastructure,” Lamont said, recalling the historic reluctance of lawmakers, including this year, when Democrats balked at supporting a regional Transportation Climate Initiative that would have raised gas prices by five cents a gallon. “Everybody knows how important it is. There’s a lot of discussion on how you pay for it. There is no such thing as a free bridge.”

The White House summary noted that Connecticut has 248 bridges and more than 2,100 miles of highway listed as in poor condition, while commute times have increase nearly 11 percent over the last decade. The poor roads cost state drivers more than $700 a year.

A school begins to take shape at Candlewood Lake Elementary construction site

Currie Engel

BROOKFIELD — The town’s newest elementary school is beginning to take shape, with walls finally rising from the ground at 100 Candlewood Lake Road.

After the arrival of fences and equipment in March and a groundbreaking ceremony in May, the construction of Candlewood Lake Elementary is well underway.

The $78.1 million, nearly 139,000-square-foot school is set to open in the fall of 2022 and will eventually take the place of Huckleberry Hill Elementary and serve Brookfield’s pre-kindergarten through fifth-grade students.

Residents can keep track of the progress through livestream cameras pointed towards the construction site. The school has its own website where residents can learn more about the school’s creation.

Paul Checco, municipal building committee chairman, said construction is on schedule due to long days put in by work crews and the inclusion of “float days” in the schedule, or cushion days that are added to allow for things like weather delays.

“We’re still in the infancy of this process,” Checco said, noting construction still has a long way to go. “We keep our fingers crossed, we keep our heads down, and we move through the project.”

Builders are working their way from the cafeteria to the classroom wings and multi-purpose area. The walls for two classroom wings are going up now, with the foundation being laid for a third, Checco said.

On Tecton Architects’ website, the building plan includes an early childhood center, three classroom wings, a cafeteria, gym, kitchen, lockers and showers, and multi-purpose space for community use. An enclosed courtyard space will provide children with protected outdoor space.

The company’s portfolio includes other school projects, ranging from public schools in Hartford, Ansonia, Norwich and New London, to private schools throughout Connecticut, and higher education institutions in several states.

Construction includes a unique technique that uses insulated concrete forms when building walls.

Instead of removing the forms after pouring concrete, as is the usual process, the foam form stays and becomes part of the structure, enhancing insulation, which will help the school save energy and money.

Checco said this means the forms can serve as “the form and insulation all in one.” He called the poured concrete building a “much more massive and strong structure.”

“I think what they’re doing is very good in that it’s cost-effective to do, it insulates better, and it saves money,” First Selectman Steve Dunn said. “That’s a win across the board in my opinion.”

Dunn said he toured the site about three weeks ago and was impressed with the progress.

“We are so excited and also eternally grateful to the Brookfield residents that nearly 1,200 of our youngest learners in town along with our amazing faculty and staff will shortly be experiencing a school with state-of-the-art construction materials and technology,” wrote Superintendent John Barile in an email.

Former State Pier tenant plans appeal of construction permit approval

Greg Smith

HARTFORD — Connecticut’s share of the trillion-dollar infrastructure legislation before Congress would be about $5.5 billion over the next five years, plus the opportunity for competitive grants, according to details released by the White House Thursday morning.

New London — The owner of a road salt business displaced by the planned $235.5 million transformation of State Pier continues his attempt to block construction.

DRVN Enterprises owner Steve Farrelly on Wednesday filed a motion to halt this week’s approval for a state permit that would allow the Connecticut Port Authority to start “in water” work in the Thames River at State Pier. It signals a forthcoming appeal of the decision.

Approval for the permit was issued on Tuesday by state Department of Energy and Environmental Protection Commissioner Katie Dykes following a series of hearings that have included vocal objections from DRVN. A federal permit application is pending with the U.S. Army Corps of Engineers.

The work authorized by the DEEP permit is critical for a project that is dependent on dredging and filling in 7 acres of water between the two piers to create one larger pier.

Farrelly’s “motion to stay” asks that the approval be put on hold while he works on an administrative appeal of the decision, though the motion itself does not prohibit DEEP issuing the permit. By state statute, Farrelly has 45 days to file a formal appeal of the decision.

A spokesman with DEEP said the permit had not yet been issued to the Connecticut Port Authority.

Attorney Keith Anthony, who represents Farrelly, declined to discuss details of the grounds for an appeal but said he has the option of filing the appeal in Superior Court.

The newest legal move was filed Wednesday with DEEP’s Office of Adjudications and asks that the commissioner’s approval be suspended until “the administrative appeal is exhausted.”

Farrelly in his motion claims “irreparable harm” to his business if the work at the pier is allowed to go forward without a ruling on an appeal. Work at the port already is underway in earnest on projects outside the scope of the permit.

Farrelly, whose business had been situated at State Pier since 2014, had imported and stored large amounts of road salt at the pier until he was issued a notice to vacate because of the impending construction work. DRVN was given several extensions to stay while it sold its mountain of salt.

When work is completed, State Pier is to be used for the staging and assembly of wind turbines for offshore wind industry joint venture partners Orsted and Eversource, who are contributing $75 million toward the project.

Farrelly continues to argue the adverse impacts of such a transformation were not taken into consideration and that his business is entitled to protection as a water-dependent use of the pier.

“The intervenor (DRVN) has been unable to bring ships into State Pier, has lost sales, and has suffered financial harm since he was unable to access the pier, storage facility, and rail transportation as a direct result of the temporary approval, and now the final approval, of the application,” Farrelly’s motion states.

During a prior hearing, Connecticut Port Authority attorney John Casey had successfully argued DRVN had no special protection as a tenant of port operator Gateway Terminal and that the offshore wind industry plan also is water dependent.

Casey was not immediately available to comment for this report.

Dykes, in her decision to authorize the permit, wrote “the Commissioner is not authorized to interfere with the rights of the waterfront property owner to select who shall occupy the waterfront property when the use of the property will continue to be water dependent, as is the case here.”

East Lyme voters once again show support for public safety building

Elisabeth Regan

East Lyme — Voters at a special town meeting Wednesday authorized $200,000 for a roof replacement that will allow for the completion of a retrofitted public safety building several years in the making.

The money will come from $2.7 million in federal COVID-19 relief aid that First Selectman Mark Nickerson said is already sitting in the town bank account.

After about 40 minutes of discussion, meeting moderator Eugene Cushman determined through a voice vote that "the ayes have it." There were about 50 people in the Town Hall meeting room, while another 20 to 30 watched a livestream on a television screen in the lobby.

Nickerson was the first to speak prior to the vote. Back in November 2018, he advocated for the $2.78 million purchase of the West Main Street building owned by Honeywell Corp. within 120 days, before the company put it on the open market. Roughly three months later, he secured approval at referendum for a $5 million project to buy the building and turn it into a hub for the town's police operations, dispatch center, fire marshal's office and emergency operations center.

"In order to deliver a finished product to this town, the town Building Committee, who's been working very hard on this project, has determined that a new roof should be installed on the building rather than patching the roof that is there now," he told voters.

The selectmen and finance boards both endorsed the use of American Rescue Plan funds to cover the $200,000 appropriation. The total includes $171,349 for the new roof, as quoted by Premier Building Associates, plus a cushion for unanticipated costs. Officials have said at previous meetings that any leftover funds would be moved to the overall project's contingency account.

The roof is original to the 33-year-old building. Some residents have been critical of the decision by officials on several relevant committees — including the Vision Committee, finance board and Board of Selectmen — to push the replacement off instead of including it in the original project budget.

Voters already have approved $7.2 million for the project, made up of an original $5 million authorization in early 2019 and another $2.2 million last fall.

The Vision Committee was charged with selecting an architectural firm and coordinating the design within the prescribed budget. That mission ended when the Building Committee took over management of the project during the construction phase.

"We can bicker back and forth all night on the project. We have for years," Nickerson said. "But the bottom line is we have an outstanding facility we're on the cusp of moving into, and the building's roof being updated now and using federal funds is the right thing to do. And we can blessedly move on from this 30-year discussion."

According to the self-described "short history lesson" from Selectwoman Rose Ann Hardy, a longtime social studies teacher, officials have been discussing the need for new public safety accommodations since she was first elected almost 37 years ago.

"Every single administration has grappled with the problem since that time, when a police study in 1984 stated that our facilities were inadequate and inappropriate," she said.

The town's 24-officer police force currently is housed in a small building on Main Street.

Hardy said the new site is not her preferred location for a public safety building, but it's the only plan that has made it this far.

Camille Alberti identified herself as a citizen, taxpayer and finance board chairman when she stood up to speak at the town meeting. She is also the Demcratic candidate for first selectman.

She asked for a "pause on this project of two to three weeks" so the town can get an inspection of the entire building and at least two more bids on the roof replacement.

"I'm here to say tonight that the abject refusals over the past couple of years to get complete inspections performed on this building by an outside licensed contractor, it leaves me befuddled to say the least," she said.

Her complaints about mold on the bottom of a wall at the rear of the building were rebuffed by Clerk of the Works William Cornelius, who said the black spores were mildew that showed up when the HVAC system was off for four to six weeks during construction. He told residents the mildew was removed using a mildew treatment and the HVAC system has since been reactivated.

Alberti also criticized the move to appropriate $200,000 instead of the $171,349 quoted price. "The contingency fund for this project is already $30,000 over budget, and this request will help make up for that shortfall," she said.

The contingency account, set at 10% of construction costs to cover unanticipated expenses, showed a deficit in last month's project budget summary. But Paul Dagle, a selectman and an ex-officio member of the Building Committee, noted expected savings will put the project back within budget. That includes $65,975 in savings the town expects to realize from various sources, including the elimination of a $43,000 commercial stove and exhaust system.

Resident John Bialowans Jr. during the meeting lamented the selection of the Honeywell building in the first place without sufficient inspections.

"The most ridiculous action on this project was to start work on the inside of the building, which is 95% complete (according to) officials, with a damaged, holey roof, and ask for more money now to repair it," he said.

The installation of a majority of the information technology and communications equipment is on hold due to leaks in the communications room, officials have said. Dagle last month said the anticipated August completion date has been pushed into "the September timeframe."

Lisa Picarrazzi, a member of the former Vision Committee who has long expressed reservations about the project but voted to approve it on that committee and as a member of the finance board, said her remaining holdout is for a 30-year roof instead of the 20-year roof that was quoted.

"Let's not cut corners and let's not rush this. Let's get a 30-year roof on it because we want to get our money's worth on this. I'm not quite sure what the downside is of three bids," she said.

Town Building Committee Chairman Raymond O'Connor said it would cost an additional $38,000 for a 30-year roof.

Nickerson told voters he would send the 20- versus 30-year roof issue to the Building Committee and said any additional expenditures would have to go through the same process that got the town to Wednesday night's meeting: votes by the Building Committee, selectmen, finance board and then by eligible voters at a special town meeting.

"In the meantime, a yes vote tonight gets us going," he said, citing a building materials shortage that could affect how long it takes to get the necessary supplies. "We may upgrade the process — it's got to go through appropriations — but at least it gets us going in the right direction."

Evergreen Walk getting Whole Foods, new storefronts

By Joseph Villanova, Journal Inquirer

The company managing South Windsor's Evergreen Walk has released its plans for the shopping plaza, detailing the relocation of Old Navy and Sakura Garden to make way for a Whole Foods, among other changes.

Charter Realty, the company managing the property, has released a document revealing its leasing plans and stated in documents presented to the Planning and Zoning Commission that the Whole Foods location would be in a new building constructed at the current site of Old Navy and Sakura Garden.

Old Navy will move to the vacant multi-unit building that formerly housed the Johnny Rockets restaurant location, among other retailers. Sakura Garden will move to a new location next to Connecticut Mattress and Emerald City Smoothie at the other end of the plaza.

Charter Realty filed an application with the Planning and Zoning Commission on June 10 detailing the site plan for the Whole Foods location, which includes the “construction of a 50,000 square foot building for a new 40,000 square foot grocer and 10,000 square feet of retail space”. Charter Realty has not said what might be in the planned retail space.

Updated elevation diagrams submitted to the PZC show non-specific plans for a mural on the Whole Foods building.

Town Planner Michele Lipe said one of the commission’s requests was decoration on the rear of the building, as it would be facing a major entrance to the plaza.

Additional documents sent to the commission include elevation diagrams for the proposed new Old Navy and Sakura Garden locations and proposed renovations to Evergreen Walk’s main entrance near the existing Panera Bread and future Whole Foods.

Lipe said Charter Realty’s PZC application should be included on the agenda for its Aug. 17 meeting, and that Charter Realty has been helpful and committed throughout the process.

“They’re working really hard down there,” Lipe said.

Mayor Andrew Paterna said the Whole Foods would be a catalyst for more storefronts to move in and revitalize Evergreen Walk as a shopping destination, adding that retailers as far as Buckland Road have reached out to express their support.

“They know there’ll be a higher shopper level in that area,” Paterna said.

Documents show there would be 19 available “lots,” or vacant spaces, for lease in Evergreen Walk after all of the moves have been made..

Charter Realty’s leasing plans indicate a 5,680-square-foot location to be leased out to a “national burger chain” to the right of Moe’s in what is now an undeveloped area. It’s uncertain if a freestanding building will be built. Also, a “national athleisure brand” will move into a 5,715-square-foot space near the New Balance store. Three other storefront lots have letters of intent for businesses to lease, but details have not been revealed.

Leasing plans also show that the Goddard School, a chain of early childhood education centers, would lease a 12,000-square-foot space combining a handful of vacant storefronts next to Ted’s Montana Grill.

A representative from Charter Realty confirmed the new Whole Foods location is coming, but did not comment on additional leasing plans or agreements.

Town Manager Michael Maniscalco said the town is hopeful for the plans that are coming through, and that Charter Realty has done a great job with the proposal.

“It’s gonna breathe some additional life back into Evergreen Walk,” Mansicalco said.

Waterbury bridge set to reopen

WATERBURY — A rebuilt bridge carrying East Liberty Street over the Mad River is expected to reopen to motorists later this month.

The East Liberty Street bridge closed late last year for a $4 million reconstruction effort. It replaces a century-old span that was showing its age, with cracks and large holes developing along the sidewalk.

The city’s Board of Aldermen approved borrowing $3.5 million for the project in September 2017, then increased the budget to $4 million in January 2019. A state program will reimburse the city about a third of the final cost.

City officials have approved a $2.8 million contract with Dayton, as well as a $323,829 contract with AECOM Technical Services to provide engineering and construction oversight.

Robert Jahn, a civil engineer with the city, said the final cost could go slightly over budget but that is not unusual. Jahn said he is pleased with the quality of work and the tight adherence to the budget.

“It’s going to be a very nice bridge and it’s probably going to last more than 100 years,” Jahn said. “I am very happy with the engineers and the contractor that worked on this.”

Neighborhood residents are already walking across the rebuilt bridge. Jahn expects it to reopen to motorists before the end of August. The contractor first needs to finish installing fencing and roadway markings, including crosswalks, Jahn said. Electrical and cable utilities also need to be transferred from temporary to permanent poles, he said.

Dayton has billed the city about $2.6 million so far, Jahn said. The bills for July and August are still pending.

“I’ve been in this for 50 years and I’m very pleased with the way this is running,” Jahn said. “You run into unforeseen conditions, especially when you are working with data that is 100 years old. After 50 years of doing this, this is one of the closest projects I’ve seen as far as the bid and final cost.”

10 ways the PRO Act could change the game for employers and organized labor

Emilie Shumway

Organized labor is having a moment unlike anything it has seen in decades. Marty Walsh, sworn in as the Secretary of Labor in March, is the first former union official to hold the office since the Ford administration. President Joe Biden formed a task force in April dedicated to strengthening workers' ability to organize.

And now, a piece of legislation sits before the Senate that, if passed, would either empower workers to democratize their workplaces or spell the end for small businesses — depending on whom you ask. Witnesses at a July 22 Senate hearing on the Protecting the Right to Organize (PRO) Act included Gracie Heldman, a worker at an industrial bakery in McComb, Ohio, who said her employer had harassed and intimidated organizers, and Jyoti Sarolia, a principal and managing partner at a California-based hospitality company, who said the law's independent contractor and joint-employer provisions would hurt franchisors.

The bill, which passed the House in March, would amend the National Labor Relations Act — as well as parts of the Labor Management Relations Act of 1947 and the Labor-Management Reporting and Disclosure Act — to restrict businesses from certain practices and empower union organizers at work.

Here are 10 ways the bill would transform the current workplace.

1. Many more workers would be considered employees, rather than independent contractors.

The independent contractor provision is arguably the "most controversial" element of the bill, Patricia Campos-Medina, executive director of The Worker Institute at Cornell University, told Construction Dive's sister publication HR Dive. The provision would expand the current definition of "employee" to include many workers who are currently treated by employers as independent contractors. 

Using an "ABC" test, the law would designate as independent contractors only those who are: (a) free from an employer's control and direction; (b) performing a service outside of an employer's usual course of business; and (c) engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed. 

Some states, such as California, already have adopted the ABC test for wage and hour issues, unemployment and other purposes. California and a few other states have also passed laws that exclude app-based drivers from the independent contractor designation. 

Under the PRO Act, the employee designation would "codify" the ABC test "so it would apply in discerning who is eligible for coverage under the National Labor Relations Act," said Mark Pearce, former chair of the National Labor Relations Board, and witness at the July 22 hearing. In other words, workers would be designated employees under the PRO Act specifically to provide greater access to the organizing and collective bargaining rights laid out in the NLRA and expanded upon in the proposed law.

Many in app-based gig jobs are misclassified as independent contractors, according to Campos-Medina said — particularly workers in fields like warehousing, administration and healthcare. "We call it the independent permanent workforce," she said. "Because they've [been] going to the same work for the same employer for years, and they are still considered independent contractors." An October 2020 report released by progressive group National Employment Law Project estimated worker misclassification rates in the United States at between 10% and 30%.

Some in the business community have expressed concerns about the potential impacts of broadening the "employee" designation. Speaking on behalf of the International Franchise Association during the hearing, Sarolia expressed said the ABC test would "likely define franchisees as employees of their brand, instead of the independent small business owners that they really are."

2. State right-to-work laws would be overridden.

Twenty-seven states have "right-to-work" laws, according to the National Conference of State Legislatures — legislation that prohibits employers and unions from entering into "fair share" agreements, in which employees must pay "fair share fees" to unions that represent their interests. In other words, workers in right-to-work states cannot be compelled to pay union dues. (Sometimes people mistake right-to-work laws as giving workers the right to refuse to join a union, but that right is already federally granted by the NLRA.)

The PRO Act stipulates that states must allow private employers and unions to enter into fair share agreements, and consequently, that unionized workplaces may collect fees from all workers, even those outside of the union.

Advocates for eradicating right-to-work laws say they degrade the power of organizing. Right-to-work laws "starve unions," Heidi Shierholz, witness at the hearing and senior economist and director of policy at the Economic Policy Institute, told HR Dive. "They say that [unions] that have to represent all these workers, legally — they have to represent everybody in the bargaining unit — cannot charge for any of those services."

Opponents of such laws argue they are a matter of worker freedom and are necessary for economic growth. "Alabama's right-to-work law has been a huge benefit for our state, because we're in the car business," Sen. Tommy Tuberville, R-Ala., said at the hearing. "[M]any industries would grind to a halt [without such laws], especially in Alabama. Employer costs would skyrocket, which could lead to a loss of jobs. Not to mention, states like Alabama [would] lose the ability to recruit companies."

3. Employers would face steep fees for firing workers for trying to unionize.

One of the most consequential elements of the PRO Act is the provision that employers face fees ranging from up to $50,000 to $100,000 for firing an employee who is trying to organize a workplace. 

Currently, Shierholz told HR Dive, "there are no civil penalties for violating the NLRA; … if a worker is illegally fired for organizing, which happens all the time, the employer doesn't have any penalties if they're found guilty [by the National Labor Relations Board]. All they have to do is give back pay to the worker that is fired, minus any earnings that the worker got in the meantime." The current penalty is so weak, workplaces are often incentivized to break the law to prevent the risk of unionization, Shierholz said.

"The biggest stumbling block for unions who are actually organizing workplaces right now is the ability of employers to fire workers and retaliate because of union activity," Campos-Medina said. "If we're able to get rid of the retaliation … I think we will see more unions."

4. Employers would no longer be able to hold mandatory "captive audience" meetings. 

Another way some managers attempt to influence a union drive is through so-called "captive audience" meetings, which employees may be required to attend. Such events are "meetings of fear," Campos-Medina said, "in which they tell [employees], ‘If you join a union, you're going to lose your job.'" 

Heldman, in her testimony, described such meetings after workers filed a petition for representation by the Bakery, Confectionery, Tobacco Workers and Grain Millers' International Union: "They told us the plant could close, that we'd lose our wages and benefits, and that we'd be forced to go on strike," she said. "If we didn't go to these meetings, we'd be fired."

The PRO Act would ban required or coerced attendance at captive audience meetings and other "campaign activities" of the employer unrelated to job duties.

5. Union-employer contracts would come together more quickly.

After employees vote to unionize the workplace, employers sometimes delay the formation of a collective bargaining agreement through "stalling techniques," Shierholz told HR Dive — a strategy that can sometimes leave workers who have voted for union representation in limbo for years. According to an analysis of NLRB data featuring hundreds of newly formed unions vying for contracts, only 48% were able to achieve a contract within the first year; one-quarter of unions had no contract agreement within three years of formation. 

"Even if a union wins an election and is certified as the representative of the workers, the company can refuse to negotiate with the union indefinitely," Campos-Medina said. "And negotiations get caught up in court, and [the contract] never happens."

Pearce, now executive director, visiting professor at Georgetown University Law Center's Workers’ Rights Institute, testified about a rehabilitation and nursing center that forestalled a collective bargaining agreement for seven years before being court-ordered to engage with bargaining efforts.

The PRO Act lays out a timeline for the collective bargaining process and, in the case of failure to reach an agreement, requires timely mediation and the involvement of a tripartite arbitration panel — including one member selected by the labor organization, one by the employer and a neutral third party member.

The bill also prohibits the delaying of union elections by having workers and the NLRB set union election procedures.

6. Union organizers would have access to employees' contact information.

Of particular concern to some opponents of the bill is a provision that employers provide a voter list to the labor organization seeking to represent employees. The list would include employees' homes addresses, work locations, shifts, job classifications and, if available to the employer, landline and cell phone numbers and personal email addresses.

Organized labor advocates argue the provision of such information is necessary for union representatives to communicate with employees, but opponents worry about the possibility of coercion and harassment. "Providing the [employee] contact information merely ensures that workers who would prefer to be left alone could not," the Competitive Enterprise Institute, a conservative think tank, wrote on the provision.

7. Employees would have the right to use work devices to engage in organizing.

The PRO Act requires employers to allow employees the right to use work communication devices and systems to communicate about and conduct organizing efforts, "absent a compelling business rationale for denying or limiting such use." 

"This means that managers could see an uptick in distraction in the workplace due to an increased dialogue on union organizing," David Pryzbylski, a labor and employment attorney at Indianapolis-based Barnes & Thornburg LLP, told the Society for Human Resources Management

8. Employers would not be able to require employees to waive their right to collective or class-action litigation.

Among the other paperwork employees sign upon starting a job, employers sometimes include arbitration agreements, through which employees waive their right to participate in collective or class-action lawsuits. Though such agreements have been challenged by the NLRB, in 2018, the Supreme Court upheld the right of employers to use collective arbitration agreements under the Federal Arbitration Act in Epic Systems Corporation v. Lewis.

The PRO Act would not allow employers and employees to enter into such agreements.

9. A joint-employer provision would likely have implications for franchisors and staffing agencies.

An element of the bill that has the International Franchise Association worried, Sarolia testified at the hearing, is the joint-employer provision, in which the NLRA would be amended to define a joint employer as one who "codetermines or shares control over the employee's essential terms and conditions of employment." Such a standard would make "franchise brands responsible for actions taken by small businesses at the unit level," Sarolia said. "This puts franchisors at risk of being sued for things they never did and had no power to stop."

Under the joint-employer provision, staffing agencies may also be interpreted as joint employers, and therefore partially responsible for what happens to employees they pair with jobs in the contingent workforce. 

"These changes would mean hiring numerous attorneys at the franchisor level to oversee employment issues and claims over which the franchisor has no control," Sarolia testified. "Ultimately, the additional costs to the franchisor would translate into additional cost[s] to independent owners like me, that would make the franchise business model untenable."

Shierholz disagreed with the assertion that the franchise model would be hurt by the joint-employer provision. "The joint-employer standard actually protects the franchisee," she told HR Dive. "As the situation is now, the franchisee … has already all the responsibilities of an employer. They already have the responsibility to be at the bargaining table. All the joint-employer standard would do would be to say, ‘The parent company that actually exerts control over the way you run your business — they also have to be at the bargaining table.'"

10. Workers of color, particularly Black employees, may see a decrease in the wage gap.

Finally — and of special interest to Shierholz — is the way the PRO Act could level the playing field for workers of color, especially Black workers, through its provisions that reinforce union strength.

"It's worth bringing up just how important unionization is to racial economic justice," Shierholz said. "People of color are more likely to be in unions than White workers. There are more White workers in unions, but that's because there's more White people. Black workers are more likely to be in unions than White workers, and the benefit that Black workers get from being in a union is greater than the benefit White workers get. Everyone gets benefits from being in the union, but the benefits are greater for people of color."

2016 report from the Center for Economic and Policy Research found that Black union workers earn on average 16.4% higher wages than Black non-union workers, "even after controlling for systematic differences between the union and non-union workforce." 

As the Black-White wage gap has worsened during the past 40 years, Shierholz said, unions could be one corrective. "One key contributor to [the worsening wage gap] is the decline of unions over that period."