Virginia Ready Mixed Concrete Association Newsletter February 2017...

Virginia Ready Mixed Concrete Association Newsletter February 2017

In the mix ...

Blue Ridge and Southwest Council Continue Education Seminars (continued)..........................................................................3Why Resilience is The New Sustainability.............................................................................................................................................4Fourth Circuit Creates New Joint Employment Test Under The Fair Labor Standards Act....................................................... 6VRMCA 2017 Spring Convention - Reminder to Reserve Your Rooms!..........................................................................................8VRMCA Best of the Best Program...........................................................................................................................................................9VRMCA 2017 Mixer Truck Roadeo.........................................................................................................................................................10Vrmca 2017 Meeting and Convention Sponsors and On The Horizon Calendar of Upcoming Events .................................11

VRMCA is on Twitter! Follow us @VAReadyMix or view the Twitter feed at www.vrmca.com

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Blue Ridge and Southwest Council Continue Education Seminars

A few months ago, you may have read my article on a presentation that the Southwest Concrete Advisory Council organized for a group of engineers and contractors in Roanoke. The great results that came out of that meeting have spawned even more presentations. On January 31st, Michael Carter presented the information to AECOM’s structural engineering department high up on the 20th floor of the Wells Fargo building. He then presented to a full house for the Blue Ridge Council.

The presentation for AECOM was a complete success. The structural engineering department consisted of nine

seasoned structural engineers, all of whom were kind enough to welcome VRMCA and Michael Carter, Fiber Specialist for Swope and Associates, into their office for a lunch and learn. The crew at AECOM works on jobs around the state and farther. A lot of their work is centralized in Roanoke and the new River Valley; counting Carilion Health Care as one of their biggest customers locally. The lunch was catered by Mcalister’s Deli but the presentation was the main course. The group was very active in the presentation and asked some excellent questions. Everyone left energized and feeling like they knew more than when they arrived.

Virginia Ready Mixed Concrete Association February 2017

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2017 VRMCA Advisory Council RegionsJay McNeelyVRMCA Advisory Council ChairmanEagle CorporationCharlottesville, VA(434) [email protected]

BLUE RIDGERob Watkins Chairman Allied Concrete P.O. Box 1647 Charlottesville, VA 22902 (434) 296-7181 [email protected]

Scott BoshartSecretary/TreasurerSuperior Concrete Harrisonburg, VA(540) 433-2482 [email protected]

HAMPTON ROADS Sarah Beasley Chairman Capital Concrete 400 Stapleton Street Norfolk, VA 23504 (757) 627-0630

(757) 627-3927 fax [email protected]

Lee Flemming Secretary/Treasurer Essroc Chesapeake, VA (757) 647-9409 [email protected] NORTHERN VIRGINIA Duane Laughlin Chairman Essroc Ready Mix 150 Lee Avenue Winchester, VA 22604 (540) 323-3301 (540) 723-4178 fax [email protected]

Marc GranahanSecretary/TreasurerLehigh CementStone Ridge, VA(703) [email protected]

RICHMOND/CENTRAL VAFred Lusby Chairman Powhatan Ready Mix 3501 Warbro Road Midlothian, VA 23112 (804) [email protected]

John Lockett Secretary/Treasurer Roanoke Cement Richmond, VA (804) 432-4387 [email protected]

SOUTHWESTBret QueenChairmanChandler Concrete Roanoke, VA(540) [email protected]

George Kuhn Secretary/Treasurer Chandler Concrete Christiansburg, VA (540) 382-1734 [email protected]

PRESIDENTStephen RenderVulcan Materials VICE PRESIDENTRobert O'BrianLynchburg Ready-Mix

SECRETARY/TREASURERGenevieve Walker Switzer T&W Block

EXECUTIVE DIRECTORDouglas EasterEaster Associates, Inc.

PAST PRESIDENTJay McNeelyEagle Corporation

2017 VRMCA Officers & Directors

DIRECTORSJoe Bartley Lehigh Cement

Sarah Beasley Capital Concrete Inc.

Larry Bullock Boxley

Mark Bundy Branscome

Billy Chenault Luck Stone Corp.

Morgan Nelson S.B. Cox Ready-Mix

Robert Sells Titan Virginia

Jeff Slagle Chaney Enterprises

Tyler Johnson Rappahannock Concrete

Tony Wilt Superior Concrete

Virginia Ready-Mixed Concrete Association250 West Main Street, Suite 100 • Charlottesville, VA 22902

Phone: (434) 977-3716 • Fax: (434) 979-2439

[email protected] • www.vrmca.com

http://www.vrmca.com


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Continued from page 1

Just over a week later, on February 8th, Michael presented again, this time for the Blue Ridge Council. The meeting was held at the beautiful Stonewall Jackson Hotel in Staunton and included a buffet style deli lunch. Despite the unseasonably warm weather that day, the room was almost completely full. The group consisted of engineers, general contractors, finishers, local officials and ready mix providers. The presentation again led to great conversation and a bevy of questions. This particular event was sponsored by both Lehigh Cement and The Sefa Group. The entire Blue Ridge Council is grateful for their sponsorship and support in making this event such a success!

These events have all been a rousing success! And throughout Central Virginia, Blue Ridge, and Southwest Councils, well over 75 engineers and contractors have been reached with the message of fibers versus basic steel reinforcement. A big thank you goes out to Swope and Associates for allowing Michael to take time out of his schedule to help the councils in this endeavor.

Jason Connor, Director of Industry Services


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WHY RESILIENCE IS THE N E W SUSTAINABILITYAccording to USGBC National Capital Region’s Voice of Resilience, “Structures and communities built with an eye toward resilience are stronger, more self-sufficient and adaptable when challenging circumstances occur, such as climate change and severe weather events. When conditions change, our communities should be built to last.”

Scientific evidence shows human-caused climate change is increasing severe droughts, extreme precipitation events, heat waves and coastal flooding.

Disaster is an indication of the failure of a society to adapt to its new environment.

How do we adapt? Adopt a building code that

promotes high performance building standards and build with robust materials.

According to the Resilient Design Institute, Resilient Design is defined as “the intentional design of buildings, landscapes, communities, and regions in order to respond to natural and manmade disasters and disturbances—as well as long-term changes resulting from climate change—including sea level rise, increased frequency of heat waves, and regional drought.”

Major disasters that have happened in the past several decades should have been a wake-up call to remind designers that they need to keep the long-term picture in

mind and to design for durability over time to withstand possible disasters. Based on the definition,

“SUSTAINABILITY” literally means “to ENDURE”. In the recent years “green” products and buildings

have become very popular, but if they don’t

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stand the test of time are they truly sustainable? No, they are not.

The metrics are well established in the construction industry as common methodologies for assessing the sustainable performance of a product, process and/or manufacturer. In addition, with the proliferation of eco-labels and green certifications worldwide, USGBC and many other organizations are beginning to recognize the effects of climate change on the frequency and intensity of natural disasters and the enormous economic, psychological and environmental toll natural disasters have on society. The connection amongst disaster, resiliency and sustainability, especially in regards to building products and their energy and environmental impacts, has long been established.

As a product of choice, concrete is increasingly being recognized as the most viable solution for our built environment. Concrete buildings are offering the true definition of sustainability. Here are some of concrete’s attributes: Durability & Long Life, Disaster Resistance (fire, flood, hurricanes, etc.), Low Carbon Construction, Thermal Mass & Operational Energy Efficiency, Acoustics, etc.

In addition, Life-cycle thinking addresses major environmental impacts throughout the complete life cycle of a product, from extraction and production, to construction, maintenance and reuse or recycling. This makes concrete the ideal product. This type of thinking is sometimes called “Cradle to Grave,” and a better approach yet is called “Cradle to Cradle,” to illustrate the inclusion of the whole life cycle and to emphasize recycling and reuse at the end of life rather than disposal.

In conclusion, we should understand that Climate Change is real. We should pay more attention to the possibility of increasingly likely disaster scenarios. We should hold the officials accountable on their decisions when it comes to approving or disapproving inferior construction products, and finally our goal should be ”To Design Buildings that Last Longer than We Do”.

Hessam Nabavi, Director of Industry Services



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Executive Summary: The United States Court of Appeals for the Fourth Circuit recently issued a decision which clarifies and expands the circumstances under which entities may be held liable as joint employers under the Fair Labor Standards Act (FLSA). The Court emphasized that the proper focus should be on the relationship between the alleged joint employers and not on an analysis of the economic dependency between the worker and the entities. The Court concluded that “joint employment exists when the facts establish that employment by one employer is not completely disassociated from employment by the other employer.”

BackgroundThe joint employment doctrine treats a worker’s employment by joint employers as “one employment” to determine compliance with wage and hour laws and holds joint employers jointly and severally liable for any violations of such statutes. Traditionally, courts have analyzed joint employment by focusing on the relationship between the worker and the putative joint employer. Courts have generally utilized various multifactor versions of an “economic realities” or “control” test to determine whether the putative employer is a “joint” employer of the worker. Noting the discord among the circuits and no clear test, the Fourth Circuit created a new test.

In a matter that originated in the U.S. District Court for the District of Maryland, Plaintiffs sued Defendants J.I. General Contractors and Commercial Interiors, Inc. for violations of the FLSA. While J.I., a framing and drywall company, employed Plaintiffs, Plaintiffs exclusively worked for Commercial, a general contractor. Plaintiffs alleged that J.I. and Commercial jointly employed Plaintiffs. Applying a multifactor test that focused on the legitimacy of the contracting relationship between the companies and whether they intended to evade wage and hour laws, the District Court granted summary judgment, holding that Commercial did not jointly employ Plaintiffs because Commercial and J.I. entered into a traditionally recognized contractor-subcontractor relationship.

On appeal, the Fourth Circuit reversed the lower court, finding that Commercial was responsible for the unpaid wages of its subcontractor’s employees. In doing so, the Court stressed that the legitimacy of a business relationship

between the alleged joint employers and their good faith in entering into such a relationship is not dispositive of whether the entities constitute joint employers under the FLSA. The Court ultimately articulated a new standard for evaluating joint employer liability under the FLSA, holding that joint employment exists when:

• Two or more persons or entities share, agree to allocate responsibility for, or otherwise codetermine – formally or informally, directly or indirectly – the essential terms and conditions of a worker’s employment; and

• The two entities’ combined influence over the essential terms and conditions of the worker’s employment render the worker an employee as opposed to an independent contractor.

The Fourth Circuit criticized the various “economic realities” tests used in other circuits. It noted that other circuits have conflated economic dependency with whether two entities are “not completely dissociated” with respect to a worker’s employment. This, in the opinion of the Fourth Circuit, has led courts to improperly focus on the relationship between a putative joint employer and a worker rather than the relationship between the putative joint employers.

In contrast, the Fourth Circuit focused on the relationship between the two corporate entities as “dictated by” 29 C.F.R. § 791.2(a) and established its own test for determining whether two persons or entities constitute joint employers for purposes of the FLSA. The Fourth Circuit enumerated six non-exclusive factors courts should consider:

1. Whether, formally or as a matter of practice, the putative joint employers jointly determine, share, or allocate the power to direct, control, or supervise the worker, by direct or indirect means;

2. Whether, formally or as a matter of practice, the putative joint employers jointly determine, share, or allocate the power to – directly or indirectly – hire or fire the worker or modify the terms or conditions of the worker’s employment;

LEGALREVIEWThis legal review should in no way be construed as legal advice or a

legal opinion on any specific set of facts or circumstances. Therefore,

you should consult with legal counsel concerning any specific set of facts

or circumstances.

© 2017 FordHarrison LLP *John G. Kruchko

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FO U R T H C I R C U I T C R E AT E S N E W J O I N T E M P L O Y M E N T T E S T U N D E R T H E FA I R L A B O R S TA N D A R D S A C T


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* © 2017 FordHarrison LLPJohn G. Kruchko is a partner with the Labor & Employment Law Firm of FordHarrison LLP in Tysons Corner, Virginia; Nancy V. Holt is counsel and Jacquelyn L. Thompson is a senior associate in the firm’s Tysons Corner, Virginia office. For more information, please contact Mr. Kruchko, Ms. Holt or Ms. Thompson at (703) 734-0554 or by email at [email protected], [email protected] or [email protected]. This article is published for general information purposes and does not constitute legal advice.

LEGALREVIEWThis legal review should in no way be construed as legal advice or a

legal opinion on any specific set of facts or circumstances. Therefore,

you should consult with legal counsel concerning any specific set of facts

or circumstances.

© 2017 FordHarrison LLP *John G. Kruchko

3. The degree of permanency and duration of the relationship between the putative joint employers;

4. Whether, through shared management or a direct or indirect ownership interest, one putative joint employer controls, is controlled by, or is under common control with the other putative joint employer;

5. Whether the work is performed on a premises owned or controlled by one or more of the putative joint employers, independently or in connection with one another; and

6. Whether, formally or as a matter of practice, the putative joint employers jointly determine, share, or allocate responsibility over functions ordinarily carried out by an employer, such as handling payroll, providing workers’ compensation insurance, paying payroll taxes, or providing the facilities, equipment, tools, or materials necessary to complete the work.

The Court stressed that this is not an exhaustive list of all potentially relevant considerations, nor is any one factor controlling. The Court further emphasized that joint employment is a highly factual analysis.

In applying these factors to the case at hand, the Court found that Commercial and J.I. were joint employers. Here, the J.I. employees worked almost exclusively for Commercial during the course of their employment. Commercial required several Plaintiffs to complete applications and to work directly for Commercial on certain projects. Commercial further required Plaintiffs to sign in on timesheets, while J.I. did not maintain written records of Plaintiffs’ hours. Commercial also required Plaintiffs to attend daily meetings run by Commercial foreman, wherein they gave instructions to Plaintiffs for the day. And even though Commercial’s contract with J.I. provided that J.I. was obligated to provide all materials and equipment, Commercial owned and provided nearly all the tools and materials Plaintiffs used to compete their tasks.

The Fourth Circuit discounted Commercial’s argument that it merely had a typical contractor-subcontractor relationship with J.I., which is standard in the construction industry. The Court noted that the traditional business relationship “has no bearing on whether they jointly employ a worker for the purposes of the FLSA.” However, the Court conceded that given the expansive definition of “employee” under the FLSA, joint employment under that statute does not necessarily mean there will be joint employment for the purposes of other federal and state laws.

On the same date as this decision, the Fourth Circuit also issued an opinion in Marlon Hall v. DirecTV, LLC, et al. In Hall, satellite television technicians argued that even though they were employees of DirectSat, DirectTV should also be liable as a joint employer for wages they claimed were owed to them. The district court dismissed the complaint, holding that the two entities were not joint employers. Relying upon the new six-factor test, the Fourth Circuit reversed, finding that the technicians’ allegations were sufficient to make out a plausible claim that DirectSat was “not completely disassociated” from DirecTV.

Employers’ Bottom Line:The Fourth Circuit, which covers Maryland, North Carolina, South Carolina, Virginia, and West Virginia, has blazed new territory. This decision extends joint employer liability beyond the parameters set by other circuits. While federal courts throughout the country have applied different, inconsistent tests in evaluating joint employment under the FLSA, the Fourth Circuit’s new test is consistent with the Department of Labor’s 2016 Administrative Interpretation which expanded the definition of joint employment under the FLSA. Further, it sets up a different test that appears to be more favorable for many employees. Given the Fourth Circuit’s broad approach, employers should not rely upon traditionally recognized business relationships as sufficient protection from a claim of joint employment. It is difficult to predict the influence this decision will have on other circuits. It is possible that they may adopt a similar test. Alternatively, circuit courts may continue to use or create their own tests, leading to a circuit split that the Supreme Court must eventually resolve. If you have any questions regarding this decision or other labor or employment issues, please feel free to contact the authors.

By John G. Kruchko, Nancy V. Holt and Jacquelyn L. Thompson*



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V R M C A 2 0 1 7 S p r i n g C o n v e n t i o n R e m i n d e r t o R e s e r v e Y o u r R o o m s !The VRMCA 2017 Spring Convention will be held May 7-9, 2017 at The Greenbrier Hotel in White Sulphur Springs, West Virginia. A block of rooms has been reserved for the nights of Sunday, May 7th and Monday, May 8th. Single rooms are $385 and double rooms are $530 per night. These rates include room accommodations, breakfast and dinner at designated restaurants. The VRMCA Room Block will be available until Tuesday, March 21, 2017 or until the group block is sold-out, whichever comes first. Call The Greenbrier directly at (877) 261-7616 to book your rooms.

Agenda and meeting registration will be available soon!

Please contact me at (434) 326-9815 or [email protected] with questions!


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M a r k Yo u r C a l e n d a r s !What: VRMCA 2017 Mixer Truck RoadeoWhere: The Meadow Event Park in Doswell, VAWhen: Monday, April 10th, 9:30 am - Driver Round-up and Registration - BE ON TIME!Who: Mixer-Truck Drivers from all VRMCA Member Companies are invited to compete.Why: Driver Education. Rewarding Day of Fun and Camaraderie. Learning-based Competition. Great Food. Cash and Other Prizes!

Sign up now! ALL registrations need to be received by NO LATER than Monday, April 3rd, 2017. We need drivers AND volunteers. Visit www.vrmca.com to register.

Drivers will be competing for a chance to win a top prize of $500.00 in cash and a free trip to The Greenbrier for the 2017 VRMCA Spring Convention. Please note that the Spring Convention is taking place May 7-9, 2017. The Second Place finisher will win $350.00 in cash.

PLEASE NOTE: Drivers MUST bring their own hard hats, work boots, and reflective vest or equivalent reflective wear as required by your company (basically what you wear every day to work). Failure to bring these items could result in disqualification.

MANY THANKS: Special thanks to Vulcan & Titan for again donating trucks to use for this event. Sponsorships are available as well, visit www.vrmca.com for details. Please consider being a roadeo sponsor or a full convention sponsor for 2017.

Contact Christina Sandridge with questions: (434) 326-9815 [email protected].


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ON THE HORIZON Calendar of

Upcoming Events

March 9, 2017NVCAC Monthly Business Meeting

11:30 AM – 1:30 PMWyndham Garden Inn

Manassas, VA

March 14, 2017 Hampton Roads Council

Meeting11:30AM – 1:00PM

March 16, 2017Central VA Council Meeting

3:00PMCountry Club of Virginia

March 28, 2017Southwest Advisory Council Meeting

9AM – 9:30 AMRoanoker Restaurant

Roanoke, VA

April 10, 2017VRMCA Truck Roadeo

Meadow Event ParkDoswell, VA

May 7-9, 2017VRMCA Spring Convention

The GreenbrierWhite Sulphur Springs, WV

October 1-3, 2017

VRMCA Fall ConventionHilton OceanfrontVirginia Beach, VA

SAND STONE&

Th a n k Yo uV R M C A g r a t e f u l ly

a c k o w l e d g e s t h e s u p p o r t o f o u r 2 0 17

M e e t i n g & Co n v e n t i o n S p o n s o r s


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