Attention Unions: Construction Workers Need Better Workplace Protection

Ken Green
CEO & Founder
UnionTrack

Construction industry workers and their unions have long fought for basic workplace protection, and they have made some progress. 

Data from the Bureau of Labor Statistics shows an improvement in workplace safety in the construction industry from 2019 to 2021, with decreases in workplace deaths and fatal falls, slips, and trips. But there are a number of other threats — outside of health and safety — still putting the well-being of these highly-skilled workers in peril, particularly rampant worker misclassification and the rapid adoption of new technologies that are displacing workers. 

As they struggle to combat these issues, many construction workers are turning to unions for help with workplace protection.

Worker Misclassification is a Persistent Problem in Construction

Perhaps one of the greatest threats to workers in the construction industry is worker misclassification. Back in 2016, Kendall Jones, editor in chief at ConstructConnect, wrote: “Worker misclassification is a serious problem in the construction industry that often goes unchecked and unpunished.” The same is still true today as little has been done to address the issue.

Misclassification is an ongoing problem in the construction industry largely because the employment model of the industry makes it easy to misclassify workers.

As Mark Erlich, a Wertheim Fellow at Harvard Law School’s Center for Labor and a Just Economy, explains, the large number of legitimate sole proprietors and independent contractors working in the construction industry make it easy for construction employers to blur those lines. Nonunion construction employers particularly “have a well-established system in which workers function as employees in every respect but are classified as independent contractors,” writes Erlich. 

By misclassifying their workers as independent contractors, construction employers can keep their labor costs down so they can submit lower bids to win projects yet still remain profitable. 

The latest estimate, provided by the United Brotherhood of Carpenters in 2018, is that 300,000 construction workers are misclassified as independent contractors. It’s not a big stretch to say there are more than that today. And, according to data analysis by the Economic Policy Institute, those misclassified workers are losing out on between $10,177 and $16,729 in wages and benefits (or 19 to 32 percent) per year.

Workers Get Paid Cash “Under the Table”

Compounding the workplace protection issue is the fact that millions of construction workers are paid off the books in cash. This is another tactic construction employers use to keep labor costs down. 

If they pay workers cash under the table, it’s as if those workers don’t exist. The company doesn’t have to pay payroll taxes, insurance, benefits, or other obligations they have towards employees. They also are not legally obligated to pay those workers minimum wage or overtime pay, so they can maximize productivity while minimizing costs. 

To this end, many big construction companies will go so far as to use labor brokers to find off-the-books employees, explains Kim Slowey, editor in chief at The Construction Broadsheet. Like misclassification, this type of labor tactic enables the construction company to reduce labor costs and underbid on projects to beat out the competition.

Many workers who are simply trying to make ends meet will accept any income as better than none. But they are being severely cheated in this scheme.

When they are paid off the books, workers receive far less compensation than employees or even recognized independent contractors. Workers paid in cash under the table earn 52 cents on the dollar compared to employee status workers, according to a 2022 study on the public cost of low-wage jobs in the construction industry by Ken Jacobs, Jenifer MacGillvary, Enrique Lopezlira and Kuochih Huang at the University of California Berkeley Labor Center.

Technological Advancements Cost Construction Workers Jobs

There’s no arguing that technology has improved worker safety and productivity in the construction industry. The flip side is that technological advancements have also led to workers losing their jobs, “particularly … manual labor jobs that can be automated or performed by machines,” notes Stuart Gentle, publisher at Onrec. 

While most industry insiders agree technology isn’t going to eliminate the need for humans on the job site anytime soon, the wider adoption of automation — particularly robotics — has long been an area of concern for construction workers. A 2018 paper by the Midwest Economic Policy Institute suggests automation will displace nearly 2.7 million construction workers in the U.S. by the year 2057.

The Paths Forward to Better Protect Construction Workers

For all the progress that has been made to improve the working conditions of construction workers and workplace protection issues, there is still much to be done to ensure they are safe on the job. Unions are the key to ensuring these workers are able to exercise their basic rights at work.

Continue to Lobby Passage of the PRO Act

The Richard L. Trumka Protecting the Right to Organize (PRO) Act was reintroduced in Congress in February of 2023. Since its inception in 2019, it has been touted as a critical piece of pro-labor legislation which unions have been fighting to pass. 

“The measure has long been organized labor’s #1 priority and would help level the playing field between workers and bosses in union organizing and workers’ rights while imposing higher fines on corporate labor law-breakers,” writes Mark Gruenberg, editor in chief and owner of Press Associates Union News Service.

If implemented, the PRO Act’s provisions would have far-reaching implications on millions of construction workers in the U.S. Some of the key provisions are: 

• Setting a legal standard for worker classification to end misclassification. “Changing the definition of ‘employee’ under the National Labor Relations Act (NLRA) will significantly pressure employers to stop gaming the system and incorrectly categorize an employee as an ‘independent contractor’ or ‘supervisor’,” explains the International Union of Bricklayers & Allied Craftworkers (BAC).
• Codifying a joint-employer standard. This would make all employers on a job site with direct or indirect control over a worker’s terms and conditions liable to each worker they use and subject to collective bargaining.
• Ending right to work. An end to right-to-work laws means a greater pool of workers available to join construction unions. More members means unions are stronger and workers are better protected. 
• Eliminating prohibitions on secondary organizing activities. “This will allow union brothers and sisters to exercise their First Amendment right to stand in solidarity with fellow construction workers fighting for their own rights and benefits at the same jobsite,” writes the BAC.

All of these elements of the PRO Act would bring greater workplace protection to the people who power the construction industry. 

Prepare Construction Workers for New Roles in Construction

Technology has and will continue to bring monumental changes to the construction industry. There’s little workers can do to stop it. The best they can do is prepare for it and find ways to take advantage of the new opportunities technology will provide. 

Essentially, “workers will need to learn to work side by side—or in a hybrid role—with machines,” write McKinsey partners Michael Chui and Jan Mischke. “For example, even the average construction worker will be expected to use a tablet to access building plans or operate a drone in place of doing a physical site walkthrough.”

To be able to fulfill those duties, many construction workers will need more specialized training and education. Unions can help provide those educational opportunities through apprenticeship programs that focus on technology and professional development classes for workers who want to learn new complementary skills.

Such preparation is going to be critical for workers who want to protect their jobs and advance in the industry in the future. 

As construction unions continue their mission to ensure industry workers are better protected on the job, leaders and organizers can use a tool like UnionTrack® ENGAGE® to survey members. This information will allow unions to gain insight into issues construction workers are facing, share solutions to those problems members are having at work, and keep members updated on efforts by the unions to represent their members.

Images used under license from Shutterstock.com.