APCA Journal 4th Quarter 2021

The Publication for Merit Shop Pipeline Contractors AMERICAN PIPELINE CONTRACTORS ASSOCIATION 811 Emergency: APCA-backed Study Goes Nationwide 2021 Year-end Product Showcase PHMSA Issues New Federal Regulations Subject to Gas Gathering Pipelines Wage and Hour Tips for Pipeline Industry Employers 4th Quarter 2021 “The Best Is Yet To Come.” – APCA President Taylor Dacus on the future of pipeline construction

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Officer Directors Of f i c ial Publ i cat ion of the Amer i can Pipel ine Cont rac tors Assoc iat ion Board of Directors Publication Staff PO Box 638 Churchton, MD 20733 (703) 212-7745 • www.americanpipeline.org ©2021 American Pipeline Contractors Association Nick Bertram Jomax Construction Co., Inc. Mike Castle, Jr. Castle Scott Coppersmith Mears Group, Inc. David Dacus (Advisory) Troy Construction, LLC Ricky Dyess M.G. Dyess, Inc. John Fluharty (Advisory) Mears Group, Inc. Chris Jones HardRock Directional Drilling, LLC Kevin LaBauve WHC Energy Services Max Nichols (Advisory) WB Pipeline, LLC Sean Renfro Sunland Construction, Inc. Aaron Simon (Advisory) Troy Construction, LLC James Schettine (Advisory) Meridien Energy William Schettine Meridien Energy Publisher TimothyWagner Editor Michael Ancell Advertising Sales Stacy Bowdring Information Technology Greg Smela Accounting James Wagner Layout & Design JosephWagner President Taylor Dacus Troy Construction, LLC Vice President RoyWeaver Weaver, LLC Treasurer Nick Bruno Bi-Con Services AMERICAN PIPELINE CONTRACTORS ASSOCIATION Wage and Hour Tips for Pipeline Industry Employers 15 By Greg Guidry As discussed at the APCA Mid-Year Meeting, all federal labor agencies will be aggressively enforcing the laws they administer, so employers must be ever vigilant. This article summarizes common issues that arise in wage and hour audits and lawsuits in the pipeline industry under the Fair Labor Standards Act and can be used as an outline of issues to look at when doing an internal wage and hour audit. APCA in Our Nation’s Capital: “The Best Is Yet to Come!” 19 After losing its 2020 Mid-Year Meeting to the pandemic, APCA members were delighted to travel to the Trump International Washington, D.C., in October to meet with colleagues from around the country and throughout the pipeline construction industry. Association members, family, and friends enjoyed a briefing in Trump’s Lincoln Library with two U.S. Senators, an inspirational keynote speaker, an informative government affairs panel, a thorough report on employment law developments under the Biden administration, and a variety of historic tours around our nation’s capital. Inside Washington | By Eben Wyman 7 News Briefs 29 2021 Year-End Product Showcase 34 Industry Calendar 41 Advertiser Index 41 Last Word | By Mark Bridgers 42 4th Quarter 2021

PIPELINE CONTRACTORS JOURNAL | 4th Quarter 2021 7 InsideWashington continued on page 8 INSIDE WASHINGTON EbenWyman APCA Government & Industry Affairs eben@wymanassociates.net (703) 740-6126 PHMSA Issues New Federal Regulations Subject to “Gas Gathering” Pipelines By Eben M. Wyman The U.S. Pipeline and Hazardous Materials Safety Administration (PHMSA) recently released a final rule that expands federal pipeline safety regulations to cover all onshore gas gathering pipelines. The rule, some 10 years in the making, expands the definition of a “regulated” gas gathering pipeline that is more than 50 years old, requiring pipeline operators to comply with federal pipeline safety regulations. This will apply to tens of thousands of miles of unregulated gas gathering pipelines. The final rule will also require operators to report safety information for all gas gathering lines, representing more than 425,000 additional miles covered by federal reporting requirements. “After years in development, these new regulations represent a major step to enhance and modernize pipeline safety and environmental standards” Transportation Secretary Pete Buttigieg said. “This rule will improve safety, reduce greenhouse gas emissions, and result in more jobs for pipeline workers that are needed to help upgrade the safety and operations of these lines.” Gas gathering lines typically transport natural gas from production facilities to interstate gas transmission pipelines. Historically, gathering lines have been lower-pressure, lower-risk, smaller-diameter lines, typically situated in lesser-populated, rural areas. Over time, the increases in hydraulic fracturing have resulted in increases in the volume of gas extracted and transported through gathering lines with greater diameters, higher operating pressures, and greater associated risk factors similar to larger interstate transmission lines. An increasing number of incidents have occurred on high pressure, unregulated gathering lines, some of which involved injuries and fatalities. In addition, PHMSA’s statement announcing the release of the final rule addressed the role that methane leaks played in developing this new regulation. “More than 1,000 metric tons of high-global-warming-potential methane gas are emitted, on average, with each pipeline rupture,” PHMSA said in a press release. “A single rupture from a large, high-pressure gas pipeline can release more than 1,300 metric tons of methane emissions into the atmosphere.” PHMSA estimates that there are at least 425,000 miles of onshore gas gathering lines that have not been subject to PHMSA oversight but will be after this rule takes effect. According to PHMSA’s statement, “[t]he rule establishes a new category of regulated onshore gathering lines covering higher-pressure lines that pose a heightened risk in rural areas--and applies existing pipeline safety requirements to tens of thousands of miles of these pipelines.”

PIPELINE CONTRACTORS JOURNAL | 4th Quarter 2021 8 Inside Washington Continued from page 7 The rule also requires all onshore gas gathering pipeline operators to begin filing incident reports and comprehensive annual reports. Currently, without this data, estimates for the greenhouse gas impacts of highly potent methane pollution are uncertain. A 2011 pipeline safety reauthorization bill mandated PHMSA to review existing regulations for gas gathering lines, leading to a proposed rule rolled out in 2016. PHMSA indicates that it is currently working to develop additional regulations that will enhance the safety oversight of gas gathering pipelines. As always, construction work is expected to be required for operators to comply with the new regulations. Vaccination Mandate Presents Threats, Confusion for Employers In September, President Biden announced a sweeping new federal mandate intended to reduce the spread of the Covid-19 pandemic, this time through workplace vaccination mandates. The first mandate required federal employees and federal contractors to be fully vaccinated through executive order (EO). The president then directed the Occupational Safety and Health Administration (OSHA) to issue an Emergency Temporary Standard (ETS) requiring all private sector employers of more than 100 employees to mandate vaccination or regular (weekly) testing of all workers. Under the EO, all federal employees had to be fully vaccinated by November 22. Covered employees of covered federal contractors (and subcontractors) had to be fully vaccinated by December 8. There is no testing alternative to the vaccination requirement for federal employees or federal contractors. “Fully vaccinated” is defined as two weeks after a final dose of a one- or two-dose vaccine approved by the Food and Drug Administration and/or the World Health Organization, and “covered” employees of federal contractors include both full-time and part-time employees, as well as employees working remotely. Federal Contractors Employees working at a “covered contractor workplace” will be covered even if they are not directly working on a covered contract unless the individuals will not come into contact with a covered contractor employee. Covered contractors would also be required to review employees’ vaccinations status by providing documentation such as a Covid-19 vaccination card or immunization records from a variety of sources, although self-attestation will not be an acceptable form of proof of vaccination. Covered contractors and subcontractors will be expected to provide legally entitled accommodations for disability, religious belief, and certain medical reasons. Not surprisingly, guidance on the mandate provided so far does not provide details on what a “reasonable accommodation” may be. Almost immediately, construction contractors began asking what continues to be the big question: what constitutes a “federal project,” and what constitutes a “federal contractor?” While many are saying that only projects subject to the Federal Acquisition Regulation are subject to the mandate, contractors in a wide range of construction sectors have been receiving mixed messages and conflicting directives from their customers. Many gas and oil pipeline operators are beginning to require their contractors to follow the mandate subject to federal contractors, despite the fact that the vast majority of pipeline construction projects do not receive any federal assistance whatsoever. Private Sector Employers On November 4, OSHA issued its widely anticipated ETS, which set a wide range of stipulations subject to private employers with 100 or more employees who unquestionably are part of the private sector. The new requirements include the following of particular interest to the construction industry: • All covered employers would have to ensure that their employees have received the necessary shots to be fully vaccinated by January 4, 2022. After that, all covered employers must ensure that any employees who have not received the necessary shots begin producing a verified negative test to their employer on at least a weekly basis, and they must remove from the workplace any employee who receives a positive Covid-19 test or is diagnosed with Covid-19 by a licensed health care provider. • The ETS does not require employers to provide or pay for tests. Employers may be required to pay for testing because of state/local laws or collective bargaining agreements. • All covered employers will be required to provide paid time for their employees to get vaccinated and, if needed, sick leave to recover from side effects experienced that keep them from working. • All covered employers must ensure that unvaccinated employees wear a face mask while in the workplace • Employers will be subject to requirements for reporting and record keeping. While the testing requirement for unvaccinated workers will begin after January 4, employers must be in compliance with all other requirements—such

PIPELINE CONTRACTORS JOURNAL | 4th Quarter 2021 9 as providing paid-time for employees to get vaccinated and masking for unvaccinated workers--on December 5. • The ETS attempts to ensure that employers know which requirements apply to which workplaces. Federal contractors may have some workplaces subject to requirements for federal contractors and other workplaces. • The ETS will not be applied to workplaces subject to the federal contractor requirement, so employers will not have to track multiple vaccination requirements for the same employees. It is important to note that these mandates expressly supersede state and local laws prohibiting mandatory vaccines, masking, and distancing, but defer to state and local laws that go further. As states, industry groups, and other stakeholders began to shout from the rooftops, the administration clarified that flexibility for federal contractors will be provided. In addition to the clarification that employers will not be obligated to pay for weekly testing of employees who refuse full vaccination, the White House guidance also addressed enforcement obligations. For example, the White House indicated that covered contractors will be allowed to provide an exemption for contractor employees who are not vaccinated or cannot wear a mask because of a disability (which would include medical conditions) or because of a sincerely held religious belief or practice. Construction contractors were also pleased to see in the ETS that for the most part “employees who work exclusively outdoors” would not be subject to the ETS mandates. In order to qualify as work performed exclusively outdoors, OSHA indicated that the following criteria must be met: • The employee must work outdoors on all days (i.e., an employee who works indoors on some days and outdoors on other days would not be exempt from the requirements of this ETS). • The employee must not routinely occupy vehicles with other employees as part of work duties (i.e., do not drive to worksites together in a company vehicle). • The employee works outdoors for the duration of every workday except for de minimis use of indoor spaces where other individuals may be present—such as a multi-stall InsideWashington continued on page 10 Pipelayers Flat Bed Tractors Padding Machines Bending Machines Excavators Trenchers Dozers For Rentals And Supplies Visit CrossCountryIS.com Or Call 1-855-955-CCIS (2247) SUPPLIES INCLUDE: Abrasive & Cutting Tools > Environmental > Safety Products > Valves, Fasteners & Fittings > Lifting & Rigging > Pigging Products > Pipe Testing Equipment > and Much More EQUIPMENT RENTALS INCLUDE:

PIPELINE CONTRACTORS JOURNAL | 4th Quarter 2021 10 bathroom or an administrative office—if the time spent indoors is brief, or occurs exclusively in the employee’s home (e.g., a lunch break at home).” While at first glance, the “working outdoors” exemption was promising, the stipulation that “employees must not routinely occupy vehicles with other employees as part of work duties” was obviously problematic. Pipeline contractors, and the construction industry in general, are not opposed to vaccination. That said, APCA will continue to strongly oppose federal vaccination mandates. The mixed messages and inconsistent direction coming out of the Biden administration reflect the fact that the administration didn’t think this through. APCA will continue to push back on this shortsighted policy, and APCA will continue to do its part to overturn this mandate before it is implemented. Soon after OSHA’s ETS was released, Texas, Florida, Missouri, and 23 other states with Republican attorneys general sued to block the vaccine mandate. Days later, the U.S. Court of Appeals for the Fifth Circuit granted the request for a group of businesses to halt the rule until at least early December in a November 6 temporary order. At the time this article was written, the administration was pushing back on the Fifth Circuit Court, and things were moving a mile a minute. APCA will continue to work with our industry allies to educate Congress and other policy makers of the dire need to overturn this shortsighted mandate. Infrastructure Bill Not All Bad for Pipeline Construction Most APCA members know that the natural gas industry continues to be under attack by an overzealous environmental community. While there are plenty of things to dislike in the president’s Build Back Better legislation, a monster of a build dedicated to social spending initiatives and nothing close to legitimate “building,” there are provisions in the Infrastructure Investment and Jobs Act (and funding to support them) that present opportunities for the pipeline industry moving forward. Earlier this year, APCA developed and disseminated a position paper that described the need for a robust pipeline system as the nation begins to increase use of renewable energy, and the association’s advocacy in the energy debate centers on three main messages: • America will not meet its ambitious goal of net-zero emissions by 2050 without an ongoing role of natural gas to help us get there; • Capturing carbon, use and storage (CCUS), which is all about piping carbon dioxide at a range of emission sources and putting it to industrial use or storing it safely, it is a sound goal. However, it will not be possible without reliable pipeline infrastructure to move it; and • Increasing use of hydrogen is a promising option as a longterm viable energy source, but significant pipeline construction will be needed, both in adjusting existing pipeline infrastructure to be able to transport higher volumes of hydrogen as well as building new hydrogen pipelines. The IIJA provides more than $10 billion for CCUS, which will allow the pipeline industry to extend is critical role for several years, if not decades. There’s also $8 billion for hydrogen—with no requirement that the energy used to produce it comes from “clean” sources. Pipeline protesters and other fossil-fuel critics came out claiming that CCUS and hydrogen language in the infrastructure package was nothing more than a giveaway to the natural gas industry, despite the fact that these resources were provided to facilitate the nation’s transition toward increased use of renewable energy. “This infrastructure proposal is not a down payment on real climate action,” said the Food & Water Watch Policy, a well-known environmental watchdog group. “It is doubling down on support for climate polluters.” CCUS seems to be the epicenter of these ignorant objections. Hundreds of climate groups continue to pummel the Biden administration, encouraging them to reject carbon capture as a “dangerous distraction” to eliminating fossil fuels entirely. While the scientific consensus is that carbon capture will be critical to slowing atmospheric warming, many activists fear it will also prolong the life of the fossil fuel industry and the use of natural gas. The bottom line is that development of innovative technologies like carbon capture and hydrogen will contribute to climate progress, and there should be universal support for these efforts. However, hard-left environmental groups refuse to buy into a practical transition to renewable energy. “When you look at the energy provisions in this bill, they are they are a boon to the fossil fuel industry and a dismal failure from the perspective of the climate,” said an executive of the Center for International Environmental Law. The group estimates that the bill includes more than $25 billion for technologies that are either “promoted or directly beneficial” to the fossil fuel industry. We know that some in the “environmental community” will never accept the fact that natural gas and pipeline transportation of a variety of energy sources will be needed Inside Washington Continued from page 9

PIPELINE CONTRACTORS JOURNAL | 4th Quarter 2021 11 Celebrating 40 years of equipment solutions semicrawlers.com | 800-524-2591 500 Davenport Drive College Station, TX 77845 79 Firetower Road Louisville, MS 39339 for the foreseeable future. This is why APCA will continue to educate even the most stubborn audiences about the important role natural gas and pipeline infrastructure will play in America’s energy future. Social Spending Bill Would Tax Natural Gas and Thumb the Scale for Union Labor While the IIJA provides resources to facilitate projects that will make carbon capture and hydrogen key energy sources in the future, the partisan “Build Back Better” (BBB) legislation, which has little to do with building, includes language that would effectively tax the natural gas industry in order to help pay for the $1.75 trillion spending package. Provisions in the BBB bill, otherwise known as “budget reconciliation,” would impose a methane fee on U.S. oil and gas producers, a concept that has been batted around for the past year. Thanks to Sen. Joe Manchin (D-W.Va.) and certain Texas Democrats in gas-producing areas for publicly opposing taxing oil and gas producers for methane emissions above a certain threshold, and Republican critics maintain that the fee is a tax that will raise costs associated with heating homes and fueling cars and that it’s duplicative policy. Oil and gas companies would be forced to pay for excess methane leaking from wells, storage sites, and pipelines under the president’s social spending package, with fees up to $1,500 per ton being imposed on an array of oil and gas infrastructure, including wells, pipelines, and processing terminals. The proposed fees would be part of a new $775 million program and would be overseen by the Environmental Protection Agency would provide grants, rebates, loans, and other incentives to help gas and oil companies report and mitigate their methane emissions. During the prolonged debate over whether and how to tax methane, the language in the House bill has been dialed back in a way that could satisfy Democrats from energy-producing states. Manchin has repeatedly criticized the concept of methane fees and it’s unclear whether the changes—including a longer phase-in time—would be sufficient to resolve his concerns. The gas industry has warned that any methane fee is likely to result in higher electricity and home heating costs for consumers. Industry coalitions have estimated that the impacts of the latest proposal would extend to some 180 million Americans and 5.5 million businesses that use natural gas. Serious Concerns about Labor Provisions APCA knew up front that the BBB legislation would include several one-sided provisions to appease Big Labor, and the InsideWashington continued on page 12

PIPELINE CONTRACTORS JOURNAL | 4th Quarter 2021 12 association is doing everything possible to kill the BBB measure altogether and mitigate all labor provisions if and when the BBB bill is considered. Among the more harmful union giveaways are both civil penalties up to $50,000 per violation of federal labor law, and civil penalties up to $100,000 per violation within the previous five years that resulted in discharge of or “serious economic harm to an employee.” The legislation also includes language that would hold directors and corporate officers personally liable for alleged workplace violations, while unions would be exempted from these unprecedented and overly punitive fines. OSHA penalties would be increased by 512 percent across the board, and Fair Labor Standards Act penalties would be hiked by 900 percent. These inflated fines are outrageous and would harm small businesses and embolden government inspectors to harass job creators, who will be hesitant or unable to afford to contest these huge citations. The BBB would also drastically eliminate a number of tools currently available to employers during labor disputes. Specifically, if passed, it would be an unfair labor practice for employers to permanently replace strikers, lock out employees prior to a strike classify certain employees as independent contractors, require employees to attend so-called “captive audience” meetings during a union-organizing campaign, and/or retaliate against class/collective-action waiver agreements. Tax Implications The BBB also includes tax increases that will only hamper already disrupted labor markets. Most of the tax increases in the president’s agenda disincentivize investment and reduce capital, wages, and employment in the construction market. Tax increases on both corporate and pass-through business income would reduce wage growth by shifting investment out of the business sector, reduce competition and overall investment, and make it harder to put people to work. Tax increases on capital gains as well as increased corporate taxes would also exacerbate an already challenging workplace dynamic. CBO Score Will Present New Challenges to BBB Passage At the time this article was written, the pipeline construction industry was already aggressively lobbying on Capitol Hill, encouraging lawmakers to oppose the BBB legislation if and when it is taken up for a vote. In addition to pushback from Democratic Sens. Manchin and Kyrsten Sinema (Ariz.), six Democrats in the House indicated that they would not support the BBB unless and until the legislation was “scored” by the Congressional Budget Office (CBO). A congressional score is essentially a cost estimate, and most expected CBO to complete it around Thanksgiving. The fact that the CBO score is expected to sour a lot of moderate Democrats, the road toward passage of the social spending bill will become a lot steeper when the CBO score is released. APCA members are fully aware that our industry is under attack, and when the environmentalists aren’t trying to kill our industry, the labor unions are trying to keep us from being allowed to be in the game. Therefore, your government relations team will continue to ask, and even beg, for your participation in our advocacy efforts. When you see an email asking for you to engage in a Muster campaign, remember that we’re in the middle of a fight for our very existence. Politics is not a spectator sport, and now is no time to be on the sidelines. 7 Inside Washington Continued from page 11 Provider of Launchers and Receivers for all Pipe Diameters Our Rentals Include: • Pig Launcher Rentals (4”-48”) • Pig Receiver Rentals (4”-48”) • Valve Rentals 713-906-0271 candacetcrentals17@gmail.com tedbtcrentals@gmail.com www.tcrentalsinc.com P.O. Box 1688 • Tomball, TX 77377 713-9 candacetcrentals17@gmail.com . . ll,

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PIPELINE CONTRACTORS JOURNAL | 4th Quarter 2021 15 HUMAN RESOURCES Wage and Hour Tips for Pipeline Industry Employers By Greg Guidry, Ogletree Deakins As we discussed at the APCA Mid-Year Meeting in Washington, D.C., in October, all federal labor agencies are going to be aggressively enforcing the laws they administer. This includes the Department of Labor’s Wage and Hour Division (WHD). Additionally, plaintiffs’ class action lawyers will continue to file suit for alleged violations of the Fair Labor Standards Act, which can lead to millions of dollars of back pay and liquidated damages settlements or rulings. This article will briefly summarize common issues that arise in wage and hour audits and lawsuits in the pipeline industry under the Fair Labor Standards Act (FLSA) and can be used as an outline of issues to look at when doing an internal wage and hour audit. It is by no means exhaustive, and if you spot issues, consultation of the regulations and guidance available on the WHD website-www.whd.org is recommended. This article should not be construed as legal advice, which can only be rendered in the context of actual facts and circumstances. Overtime. Surprisingly, there are a fair amount of regular audits and lawsuits involving the failure of the employer to pay non-exempt employees overtime after 40 hours of work in a 7-day workweek, and instead paying employees straight time after 40 hours, sometimes pursuant to a written agreement (not enforceable). The FLSA requires that every employer establish a 7-day workweek, and that that 7-day workweek be reflected in its recordkeeping. The law requires that all nonexempt employees who work over 40 hours in that workweek receive overtime pay equivalent to one and one half of the “regular rate” for all hours worked over 40. Regular Rate Issues. The regular rate is an hourly rate that must be calculated before being able to pay overtime properly to non-exempt employees. It must be established regardless of whether the employer is paying a salary, a day rate, or other pay system. Employers often fail to include extra payments in the regular rate calculation. Examples are non-discretionary bonuses (e.g., a safety bonus paid to workers who work so many days without a recordable accident/injury) and excessive expense reimbursements that exceed the amount of expenses actually incurred. If you are paying any compensation to your non-exempt employees in addition to their regular hourly rate or salary for hours worked, please determine whether it should be included in the regular rate calculation. Recordkeeping Violations. An employer must keep accurate records reflecting the time actually worked by all of its non-exempt employees. It is lawful to use a default method of timekeeping if employees are given the opportunity to submit alterations when the default number of hours is not worked. For example, it would be lawful to inform employees that they will be logged in at 10 hours per day as the regularly scheduled workday, but if the employees work less than 10 hours or more than 10 hours, they are required to report that change to their supervisor or other designated management representative. Per Diems. Many pipeline industry employers pay daily per diems to their employees who are required to travel to remote locations to work on a pipeline. Allegedly excessive per diems paid to employees is a frequent subject of class action lawsuits and WHD audits. The general rule under the FLSA Greg Guidry Ogletree Deakins Nash Smoak & Stewart greg.guidry@ogletree.com (337) 769-6583 Human Resources continued on page 16

PIPELINE CONTRACTORS JOURNAL | 4th Quarter 2021 16 Human Resources Continued from page 15 is that per diem payments that reasonably approximate the actual expenses incurred by a non-exempt employee are not includable in the regular rate calculation for overtime purposes. However, any excess must be included in the regular rate calculation. Hourly per diems based on the number of hours worked are not permitted, according to the WHD’s Field Operations Handbook and other guidance. In 2019, the FLSA regulations were amended to include language that indicated that employers who paid a per diem amount allowed by the federal GSA guidelines for per diems based on geographical location were presumed to be in compliance with the FLSA. There are also several reported cases and WHD audits that have found that per diems paid to employees who incur no lodging or meal expenses remotely, e.g., because they live within 50 miles of the jobsites, to be unlawful. The IRS also has guidelines on per diems and expense reimbursements that should be consulted. Welder Rig Rental. Many pipeline companies pay their employees a rental payment to cover the cost and expense of operating equipment that is required on the job. In several FLSA guidances and in at least one court decision, it is said that equipment or truck rentals that are reasonable in relation to the hourly pay paid to the worker, and not excessive in order to avoid including those rentals in the regular rate, are lawful. This is known as the “split check” practice. In 2002, the IRS issued a special procedure for the mainline pipeline industry that indicated that if a pipeline contractor paid an IRS annually approved hourly rate to welders who are required to own their welding rig as a condition of employment, that was considered to be “deemed substantiated” as an appropriate reasonable amount to cover the welder’s investment and expenses under an accountable plan under IRS regulations, and thus non-taxable. This is a tax guidance, not an FLSA guidance. The author is not a tax lawyer, so your accountant or tax attorney should be consulted to ensure that you are in compliance with applicable IRS guidelines if you pay welder rig rental. The author is not yet aware of any court decisions or WHD opinions specifically addressing the hourly welder rig rental in the context of the FLSA. Day Rate. Many employers in the oil and gas industry and pipeline industry have been paying a day rate for many years. However, this is changing because of legal attacks on the system. The FLSA allows an employer to pay a predetermined daily rate to its non-exempt employees so long as it pays overtime to those employees when they work over 40 hours in a workweek. Many employers were under the impression that if they paid a generous day rate for every day worked by the employee this would eliminate any overtime obligation. This is not the case. A recent decision by a typically employer friendly federal appeals court found that an employer’s payment of a day rate, instead of a salary, to an employee classified as exempt by the employer, was unlawful, despite the fact that the employee made over $200,000 annually. Generous pay plans often create huge liabilities for employers who do not follow the technical rules of the FLSA. Travel Time. Normal commuting time to and from the place of residence or lodging to and from the job site by non-exempt employees is normally not compensable. However, if an employer requires employees to report to a central location (e.g., company headquarters or construction staging areas) and the employee is required to load equipment, or perform other tasks, including training, the travel time between the central location and the job site is generally compensable time. Also, travel time during the day from one work site to another work site is compensable. There are regulations and guidances covering other types of travel time- -if you aren’t paying your employees for any increment of travel time, further evaluation is recommended. Note: Travel time can be paid at a lower rate than the employee’s regular hourly rate. Training Time. If you require employees to participate in training that is relevant to their job, that time is generally compensable. It can be paid at a lower rate. However, if a person is not actually your employee yet but is required to take courses to get certified in order to be qualified (e.g., welder certification), that time may not be compensable under WHD guidance. However, opinions of the WHD on these issues often change, so do necessary research or seek legal counsel about any unpaid time that may be substantial. On Call Time. If an employee is “on call” (expected to be available for work on short notice) that time may or may not be compensable. If the employee is free to engage in personal pursuits during on call time and is only required to be available when called upon to do work, it may be non-compensable. If, however, the employee is greatly restricted in what he can do and where he can be during on call time, it may be compensable. It can be paid at a lower rate. Misclassification of Employees as Exempt. The main “white collar” exemptions from overtime for employees paid a minimum salary of $684 per week, are “executive,” “administrative,” and “professional” exemptions. In the pipeline industry, the typical exempt executives are executives employed by the employer, superintendents on pipeline projects, project managers, and other high-level managers whose primary duty is “management.” Salaried foremen may or may not be exempt, depending on how much authority to

PIPELINE CONTRACTORS JOURNAL | 4th Quarter 2021 17 hire and fire they have and whether their primary duty is to manage, as opposed to working along-side of their co-workers. The administrative exemption normally covers human resources professionals, executive assistants, and other high-level administrative positions (depending on whether they are regularly required to “exercise discretion and independent judgment with respect to matters of significance”). Note: WHD takes the position that most “inspectors” do not qualify for the administrative exemption. Misclassification of Employees as Independent Contractors. It used to be more common in the pipeline construction industry to classify certain craft workers, such as rig welders, as independent contractors (ICs). This practice seems to be rare these days, but there may be some companies who still use ICs. Note that misclassification is a target issue for WHD and other federal agencies, and that if you use ICs, ensure that your model is defensible. The Biden administration revoked proposed guidance by the Trump WHD that would have made it easier to classify a workers as an IC, and the Biden nominated WHD administrator, David Weill, is no fan of classifying workers as independent contractors under the FLSA. Extensive discussion of the recommended model is beyond the scope of this summary, but it is highly recommended that if you classify any of your workers as ICs that you review the model very carefully for compliance both under federal laws and state laws (which vary from state to state). This was not an exhaustive discussion of all possible issues that can arise if you are faced with a Wage Hour Division audit of your pay practices. The FLSA is a complicated law, with many nuances that can catch a good employer by surprise. Doing a self-audit of your pay practices is a highly recommended step to avoid future liability, particularly since the current administration is promising aggressive enforcement of the FLSA and has set forth several initiatives to educate your employees about their rights. Violations can result in back pay up to three years, liquidated (double) damages, and civil money penalties is some egregious cases. You also want to avoid being faced with a costly collective (class) action filed in federal court by a law firm that does nothing but file wage and hour class actions. Closing Tip: If faced with a WHD audit, it is generally best to cooperate with the investigator, since WHD has the power to get the information they want, via court ordered subpoena, if necessary, if you don’t cooperate. 7

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PIPELINE CONTRACTORS JOURNAL | 4th Quarter 2021 19 APCA in Our Nation’s Capital: “The Best Is Yet to Come!” After losing its 2020 MidYear Meeting to the pandemic, APCA members were delighted to travel to the Trump International Washington, D.C., in October to meet with colleagues from around the country and throughout the pipeline construction industry. More than 130 association members, family, and friends enjoyed a briefing in Trump’s Lincoln Library with two U.S. Senators, an inspirational keynote speaker, an informative government affairs panel, a thorough (and at times ominous) report on employment law developments under the Biden administration, and a variety of historic tours around our nation’s capital. APCA kicked off its Mid-Year with a reception in the stately Lincoln Library, where members heard from Sens. Shelley Moore Capito (R-W.Va.) and Sen. Roger Marshall (R-Kans.). Capito discussed the importance of pipelines to safely and efficiently transport energy, her support for the pipeline industry, and the status of the federal infrastructure bill. “Pipelines are safer, more efficient, and well-studied. And you all do a great job putting them in the ground,” she said. Marshall Backs Pipelines Marshall also showed great support for pipelines, noting that his grandfather was a welder and machinist and calling the Green New Deal “a declaration of war on the oil and gas industry.” He also spoke about the negative impacts of the PRO Act and the methane tax, America’s carbon footprint being at a 25-year low, and the importance of clean and affordable natural gas to the world economy. On the following morning, former big-league pitcher Jim Morris shared the story that inspired the hit film The Rookie starring Dennis Quaid. He told the APCA audience to ignore the dream-killers (“people who want to see other people fail so they can feel better about their own situation”) and embrace the dream-makers (“keep people around us who are going to make us better”). He concluded his talk with great advice: “If you look in the mirror and don’t like what you see, change it.” The APCA government affairs team followed Morris’ speech with a grand slam Government & Industry Relations Panel that touched on many of the issues threatening the pipeline construction industry: natural gas bans in a growing number of municipalities, the PRO Act,

PIPELINE CONTRACTORS JOURNAL | 4th Quarter 2021 20 project labor agreements, proposed methane taxes, the Clean Energy Performance Program, and more. Moderated by Eben Wyman, Wyman Associates, the panel included representatives from the American Gas Association, American Petroleum Institute, Associated Builders and Contractors, Coalition for a Democratic Workplace, and Interstate Natural Gas Association of America. Mike Castle, CASTLE; Taylor Dacus, Troy Construction; and Zack Perconti, Wyman Associates, represented APCA on the panel. Batting cleanup on the panel, Alex Schettine of Muster described APCA’s grassroots lobbying efforts and how members can make their voices heard on the important topics discussed during the panel. He said that the number of APCA advocates has tripled over the last three years to now more than 2,300, and he urged members to get their employees involved in Muster with toolbox talks, contests, and prizes. From the audience, board member John Fluharty, Mears Group, summed up the APCA mood: “Are we up for a street fight? Because we’re in one.” APCA members look forward to Greg Guidry’s Recent Developments in Employment Law at every association meeting not because it’s full of good news (it never is!), but because it’s full of news they need to know about. Guidry, from the law firm Ogletree Deakins Nash Smoak & Stewart, reviewed significant developments from the White House, Congress, the courts, and federal labor agencies. He concluded his presentation with a Biden Administration Survival Kit, noting that “federal agencies are all targeting you.” Guidry also shared a quote from former President Trump, which is fitting given the many challenges facing the industry: “You can’t be scared. You do your thing, you hold your ground, you stand up tall, and whatever happens, happens.” At the Mid-Year’s Farewell Dinner, APCA President Taylor Dacus echoed President Trump’s sentiments. He noted the many challenges facing the pipeline industry, but then he listed the many opportunities ahead and as he looked out at the room full of people who are working hard toward a better America, concluded: “The best is yet to come!” 7 See Mid-Year photos begining on page 22

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PIPELINE CONTRACTORS JOURNAL | 4th Quarter 2021 22 Images of the APCA 2021 Mid-Year Meeting 6Jim Morris’ circuitous route to the major leagues is literally what they make movies about, and his homespun wisdom was a hit with the APCA crowd. “Chase your dreams no matter what. Don’t look around, don’t look back, just go for it.”

PIPELINE CONTRACTORS JOURNAL | 4th Quarter 2021 23 Sen. Mary Capito (R-W.Va.) told APCA members that she sees promise in renewable hydrogen and carbon capture technologies and understands the need for dependable pipeline infrastructure to safely support them. “If you can’t get it from point A to point B, you can’t use it!” 6 4During the Government & Industry Relations Panel, APCA President Taylor Dacus said that the association would continue fighting bad policy from the Biden administration, including the Covid-19 vaccine mandate, methane taxes, estate taxes, and the so-called Build Back Better Act.

PIPELINE CONTRACTORS JOURNAL | 4th Quarter 2021 24 3Sen. Roger Marshall (R-Kans.) decried proposed methane taxes, noting that the nation’s carbon footprint is at a 25year low, “not by new taxes but by innovation.” 5Speakers at the APCA Government & Industry Relations Panel outlined the many challenges facing the pipeline industry while also explaining the many ways that the industry is fighting back and the many allies that are working with us.

PIPELINE CONTRACTORS JOURNAL | 4th Quarter 2021 25 5After warning APCA members that “federal agencies are all targeting you,” labor attorney Greg Guidry, Ogletree Deakins, said, “Your mission is to train your supervisors because untrained supervisors are your biggest risk.” 4Obviously a patriotic bunch, APCA members took in all the sights along the National Mall and beyond. Spotted here on the Capitol grounds are Brandilyn Barkley and Charlie Simpson, Sterling Site Access Solutions; Candace & Cindy Nichols, T&C Rentals; and Meghan Connors, Andrea Nickel, and Rocky Seils, PipeSak Incorporated.

PIPELINE CONTRACTORS JOURNAL | 4th Quarter 2021 26 5Mark Bridgers, Continuum Capital, engages the panelists during the government affairs session. 5During the Regular Member Meeting, Mark Bridgers, Continuum Capital; Kevin Fox, WHC Energy Services; Taylor Dacus, Troy Construction; and TimWagner, APCA, discuss efforts to draft a model contract for the industry. 6Relaxing before the briefing from Senators Capito and Marshall are Mark Mitchell, Illinois Truck and Equipment Company, and Roger Spee, CRC-Evans International. 6EbenWyman, Wyman Associates, explains that APCA is working with industry allies to develop a Safety Management System template “before the regulators and bureaucrats push a mandate on us.” 4APCA members enjoy a reception in the elegant Lincoln Library at Trump International. 6Good times at theWelcome Dinner for Jeremy Guretzki, Stanley Inspection, and Mike Castle and Chandler Castle, CASTLE.

PIPELINE CONTRACTORS JOURNAL | 4th Quarter 2021 27 4During the Farewell Dinner, APCA’s TimWagner thanks the Mid-Year Meeting sponsors, “whose generosity makes our excellent program possible.” 3APCA members dance the night away and bid farewell to another successful Mid-Year Meeting. 64Many APCA members crossed the Potomac River to visit Arlington National Cemetery, the final resting place of America’s greatest heroes. 3You can bet that folks, like Board member Kevin LaBauve, WHC Energy Services, are paying rapt attention during Greg Guidry’s employment law session. 3Thomas Clapper, Equix Energy, weighs in during the Government & Industry Relations Panel. 3The Government & Industry Relations Panel provided lots of great information but also served as a rallying cry to mobilize our people and our resources to support the pipeline industry. 5New APCA Board member Chris Jones, Hard Rock Directional Drilling, chats with longtime Board member Sean Renfro, Sunland Construction, during the Welcome Dinner.

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PIPELINE CONTRACTORS JOURNAL | 4th Quarter 2021 29 NEWS BRIEFS News Briefs continued on page 30 APCA Announces Release of 811 Emergency Study On November 16, APCA announced the release of a new, comprehensive study of the nation’s 811 system, which found that failures in the system are costing the U.S. some $61 billion a year in waste and excess costs and creating unnecessary hazards for public safety. The study, unprecedented in scope and scale in the damage prevention space, was conducted by Continuum Capital for the Infrastructure Protection Coalition (IPC), a coalition of industry groups who represent regular users and stakeholders in the 811 system and want to see it run safely and efficiently. You can view the study at the coalition website: www.ipcweb.org. Besides APCA, other members of the coalition are the Distribution Contractors Association, National Utility Contractors Association, Nulca – representing utility locating professionals, and Power & Communication Contractors Association. The coalition is working with Mercury, a high-stakes public strategy firm, to promote the study nationwide and to reach out to reporters in low-performing states. “APCA was on board with this study from the start, and I’m proud that we helped push it through to completion,” APCA General Manager Tim Wagner said. “I also wholeheartedly thank Mark Bridgers, Loren Brace, and all the folks at Continuum Capital for the hard work and brain power they put into this amazingly complex and detailed study.” 7 Biden Nominates Phillips for FERC Commissioner On September 9, President Biden announced his intent to nominate Willie L. Phillips, Jr. as a Commissioner of the Federal Energy Regulatory Commission (FERC). FERC is an independent agency that regulates the interstate transmission of natural gas, oil, electricity, and other energy projects, ensuring that consumers can access affordable, efficient, safe, reliable, and secure energy services. Willie L. Phillips is an experienced regulatory attorney combining nearly 20 years of legal expertise as a utility regulator, in private practice, and as in-house counsel. He has an extensive background in the areas of public utility regulation, bulk power system reliability, and corporate governance. The White House said that as Chairman of the Public Service Commission of the District of Columbia, “Phillips was a thoughtful and innovative leader in modernizing the energy grid, implementing the District’s aggressive clean energy and climate goals, and in protecting the District’s customers.” Prior to the DCPSC, Phillips served as Assistant General Counsel for the North American Electric Reliability Corporation, a not-for-profit international regulatory authority charged with ensuring the security and reliability of the bulk power system in Washington, D.C. He also worked for two law firms, where he advised clients on regulatory compliance, litigation, and policy matters. Phillips is an active member of the National Association of Regulatory Utility Commissioners, where he serves on the board of directors and chairs the Select Committee on Regulatory and Industry Diversity. He earned a Juris Doctor from Howard University School of Law and a Bachelor of Science from the University of Montevallo. “I congratulate DC Public Service Commission Chairman Willie Phillips on his selection to be the next member of the Federal Energy Regulatory Commission,” FERC Chairman Rich Glick said. “The commission’s work is essential to advancing our nation’s clean energy transition and to ensuring the reliability and security of our energy infrastructure. A five-member commission is critical to ensuring this important work continues. As is tradition, the commission stands ready to support Chairman Phillips during the confirmation process. And I look forward to working with him once confirmed.” 7