Legislative News

prevailing wage . . . shall be paid.” UTCA opposed the bill in committee and requested amendments. After conversations with the sponsors in both houses and a joint call with the NJ Associated Builders and Contractors, Senator Singleton has stated he is open to amending the bill to state that a contractor shall sign an affidavit that they intend to pay the prevailing wage. As of this writing, we have not yet seen draft language, but will keep you updated as the conversation progresses. DESIGN BUILD A1285/S2874 (Greenwald/Singleton) Legislation to enable design-build procurement across local and state government continues to advance. UTCA worked with Assembly Majority Leader Lou Greenwald as well as other partners on this legislation and expect the measure to pass early this year. This would be an invaluable procurement tool for our state, especially now, when we need to make the most out of every state dollar.

ECO-FRIENDLY CONCRETE A4933/S3091 (Burzichelli/Addiego) As initially drafted, this legislation would have required all state and local entities to establish purchasing preferences in bids for unit concrete products that utilize carbon footprint-reducing technology. In advance of a recent committee hearing, UTCA worked with the sponsors on amendments that removed all references to bidding and preference, replacing that language with a directive for state departments and local entities to include a line item in the specifications in the event that an owner wants to use the product. Similarly, our partners at the Concrete Association were able to clarify that “unit concrete product” shall not include ready mix concrete, sand, stone, gravel, or bituminous concrete or asphalt.

Please consider supporting the UTCA PAC, Constructors for

Good Government UTCA continues to be a leading voice for the infrastructure construction industry in Trenton and Washington DC. Whether it is providing expert testimony before business and legislative groups or positively effecting the legislative process, UTCA stands alone in its record of achievement for our industry. This success is only possible with your support and more importantly, by supporting the industry PAC: Constructors for Good Government. We will be reaching out to you shortly and hope you will consider contributing as a robust PAC greatly strengthens our voice. Thank you for your continued support.

2020

"Constructors For Good Government" PAC Club Contributors

President’s Club

J.Fletcher Creamer & Son Crisdel Group D’Annunzio & Sons Earle Asphalt George Harms Construction Montana Construction Mount Construction Northeast Remsco PKF Mark III South State Union Paving & Construction

Platinum Club

James J. Anderson Construction Bayshore Recycling C&H Agency Flanagans Contracting Green Construction HBC Company Hoffman International Metra Industries Sa & Sons VIP Contractors Yonkers Contracting

Silver Club

B&W Construction Berenato Contractors First Montgomery Management J.C. MacElroy Mathis Construction P.M. Construction Top Line Construction United Communities

Ambassador’s Club Gold Club

M.L. Ruberton Construction Schifano Construction Traffic Lines Zone Striping

Leadership Club

Anselmi & DeCicco B.Anthony Construction Black Rock Enterprises JRCRUZ Corp Petillo Inc. Smith Sondy Asphalt Construction J.A. Alexander Brent Material Garden State Precast Jesco New Prince Concrete Construction Prismatic Development Corp. Skoda Contracting V.A. Spatz & Sons Stavola

Bronze Club

AJM Contractors Bil-Jim Construction Capital Steel Service Coppola Services Patrick DiCerbro Griffin Engineering ICON Ritacco Construction

Special thanks to those firms that supported our Industry PAC in 2020!

aspen landscaping contracting celebrates 25 years

By: zoe baldwin

Founded in January 1996, Aspen Landscaping Contracting Inc is a multi-service, multi-state M/W/S/DBE firm specializing in everything from planting, wetland mitigation, erosion control, hydroseeding, and railroad spraying to landfill work, irrigation, and tree clearing. Their story, and that of its owner Maria Fuentes, is one of hard work, perseverance, and community.

In 1967, Maria and her family immigrated to the United States from Cuba with only the clothes on their backs. She went on to graduate from Rutgers University with a Bachelor of Arts in Business. Maria began her career in the telecom industry, working for five years at AT&T and ten years at Motorola as an Account Executive before branching out into landscaping. One of her accounts, Emil Solimine of EMAR, represented several contractors. Through that relationship, Maria was introduced to the construction world and discovered the growing niche available to minority and women-owned small businesses.

"I became familiar with the construction industry and the DBE program," Maria tells me. "My competitor, VIP Contractors, was originally my customer at Motorola. They were the largest at the time, and I watched Jackie and Joe Tomasella grow the business through the years. The more I got to see, I realized that as a minority woman, I could do something similar. I started researching and realized the work was all spec, meaning I didn't need a horticultural background."

Maria spent three years working at Motorola full time while building Aspen. Her two oldest daughters, Stephanie and Jackie, were both under two years old while Maria worked around the clock to bid small jobs and establish herself with prime contractors. "It was undeniably too fast and nerve-wracking in the beginning—I had two little ones, was still employed elsewhere, and was working at Aspen cold-calling contractors. It's a risk for a contractor to try a new sub, but slowly I was able to convince them to give me small jobs and let me prove myself. It took a while to develop a work-in-progress schedule and start getting jobs, but I became a DBE, which helped me substantially.”

Maria A. Fuentes, President of Aspen

After being in business for about six months, Maria received a call from Laborers Local 472 to say that a superintendent had just left another construction company and was looking for work. "They sent over Frank Cunha, who was a superintendent with over 20 years of experience in the landscaping industry. Frank was seasoned and experienced with all entities in NJ, and without him, we never would've gotten off the ground. He trained and recruited our employees, and that's what started to lay the foundation of Aspen," Maria recalls.

Frank's arrival helped get the gears in motion and set the stage for Aspen's next big move—bidding a job as the prime contractor. In 1998, NJDOT reached out to Maria and asked her to bid on a $1.6 million project on Route 78, where the landscaping was the majority of the contract. The NJDOT had only received one response and would've had to rebid the job if Aspen hadn't come forward. Maria was very nervous at the prospect of serving as the prime contractor, but the team at NJDOT was very encouraging and ultimately convinced her to move forward.

"I went to get ready to bid, and NJDOT called to say I needed a bond," Maria recalls. "The only issue was that meant coming up with more collateral. I turned to my parents, who put up their home as collateral in order to increase the line of credit so that I could bid work as a prime. Without my parents taking the risk of losing all their assets for the second time, there would be no Aspen today."

Her success on the Route 78 project, followed by another on Route 3 in Clifton, gave Maria the full confidence to move ahead and not look back. Almost three years later, she retired from Motorola and committed to Aspen full time. In those early days of the Company, Aspen stuck mainly to NJDOT, Port Authority, NJ Turnpike, and Garden State Parkway projects. They excelled at

hydroseeding, planting, and hardscapes, before branching out into wetlands, irrigation, and tree clearing.

By the mid-2000s, increased competition had slowed work in New Jersey, and Aspen started venturing into New York, where more opportunity arose. That move presented its own challenges, and as Maria points out, "As a subcontractor, there are always logistics that need to be worked out."

Despite the challenges, Aspen was able to land several projects with the New York City Parks Department. Those projects had a greater complexity level, and Aspen was learning and gaining experience at a quick pace. They continued bidding projects in both states and expanded into wetlands and landfills.

"It wasn't particularly intentional," Maria remembers. "I saw a project, brought in my team, and met with vendors. I had a supervisor here that grew with the company and was able to guide our project managers. As Aspen grew, I was able to continue purchasing equipment and rent as well. We added trucks and yellow iron, but the mitigation work looked a lot like the work we were already doing, so it wasn't too big of a stretch."

Aspen continued until 2018 when Maria and her partner had a falling out, and Maria took full control of the company. "Some people in the industry kind of raised an eyebrow at me, and I felt like I had to convince them I knew what I was doing," she says. "But really, it's about managing the projects, managing the employees, and gaining control of what you have."

As the partnership dissolution process became increasingly contentious, Maria had to confront a number of obstacles that at some points seemed insurmountable. A superior court judge limited her working hours to just 20 hours a week for almost three years. Maria was faced with the difficulty of managing a company within these limitations or filing Chapter 11 bankruptcy.

As Maria explains it, "The construction industry cannot be managed remotely. I went ahead and did the reorganization and filed Chapter 11 to preserve the value of Aspen during the process we were going through as part of the separation from my former partner."

Some office and field staff standing in front of '2000 Hydroseeder, we are grateful for our employees. Pugsley Creek, Queens, NY.

It took three years of hardship, but through diligence and the support of her family, friends, and community, Maria overcame. "During that difficult transition, there were days where I was just exhausted from work, but I still had to come home and be a mom to my daughters with a smile on my face. It was really hard sometimes," Maria says. "I started reading a lot and came across a quote from Napoleon Bonaparte that has always stuck with me. 'Courage is not having the strength to go on, it is going on when you don't have the strength.'"

And that type of courage is exactly what Maria was able to muster. In May of 2020—six months after filing—Aspen came out the other side of the bankruptcy proceedings. "I received a lot of support from my family and friends. I'm so fortunate to still have my parents with me—they're 87 years old—and they kept saying, 'Look forward; stay positive; be honest,' And I did." Maria also attributes this quick turnaround to her bankruptcy lawyer, Richard Trenk.

"Richard is one of the most intellectually tenacious people I have ever met," Maria tells me. "He was unbelievable and ethical. In federal court, Judge Papalia acknowledged how hard I worked to put Aspen and its employees before myself. I could have just shut down, walked away, and let the bonding company come in and take over, but I truly felt an obligation to the company, employees, and my daughters. I started Aspen, so I knew what it would take to save it. Against all odds, we're still here, and I'm very proud of that."

Just as she was able to lean into the construction community when she began her business, she leaned into it once more to keep it afloat. "I was working for D'Annunzio and Sons, Anselmi & DeCicco, and Conti Construction, all at Newark Airport. They were my first calls because they were my largest jobs, and I just reassured them that I was here to stay. I had a lot of wonderful people there for me." She also thanked Sax accountant Michael Curry, consultant CFO Robert Aitkens from Exarca, David Lipari of Hedinger & Lawless, and Ronald Tobia for their tenacity, moral integrity, and character.

"I go above and beyond for customer service, and that's really what started me. Those morals and principles are what helped Aspen grow in the industry, and I want to go back to those same basic values. I'm always concerned about the Company's reputation and have been working hard to rebuild that."

Then, right in the middle of these ongoing challenges, the COVID-19 pandemic hit. In early April, Maria learned that one of her employees, Jaime Grande, had passed away from the virus. "My heart sunk. He had been laid off for the winter months and hadn't returned for the spring season yet. I met all of the 472 Laborers at the end of the day. The men were shaken. I reassured everyone that if they didn't want to come back to work or didn't feel safe, it was okay. Some employees stayed home for a few weeks as they were at higher risk or frightened, so I did the jobs I could with the employees I had until one by one they started coming back to work."

Maria is grateful Aspen was able to keep working during the pandemic, even though it meant navigating different work rules in each state. For example, in New York, they were only allowed one person per truck, which significantly increased expenses. "At one point, the City tried to implement guidelines that only one man could plant a tree. You can't do that—someone could get hurt!" Maria points out. "COVID was new to everyone in the industry, and it was especially difficult with the daily changes to the rules in each state."

Now, with a vaccine being rolled out and the end of the pandemic hopefully in sight, Maria looks to continue rebuilding and regrowing the firm she poured her blood, sweat, and tears into for the past 25 years. "Luckily this year, the weather at least has been on our side, so I've been able to keep working when most years I'd be shut down by now. I have crews right now at a golf course in New Jersey, Newark Airport, and New York City."

She looks forward to refocusing her work on this side of the

Temporary irrigation directed by Mark Canzano at Pugsley Creek.

Laguardia Airport, before picture of Deck Extension Wetland Mitigation Project.

Hudson River and is grateful she has been recertified as a DBE. "Even though we're through the worst of it," she laments, "it still has its challenges. I'm currently working without a line of credit, and after Chapter 11 everything is COD. I’m thankful to have work and that we’re rebuilding. I'm generally a $15-17 million a year company, and I'm looking to get back to that. I'm honored Aspen survived."

Maria truly feels that her employees, network, family, faith, and the UTCA helped guide her through the most challenging times. "It's all about a few basic things: having courage, staying focused, building relationships, and going back to the fundamentals. Life is too short; all you can do is move forward.”

UTCA congratulates Maria and the Aspen Landscaping Contracting team on the past 25 years and looks forward to celebrating their next quarter-century of success.

This article is dedicated to Maria's parents, Julio and Marcela Hernandez, and Frank Cunha, all without whom Aspen would not have been possible.

the u.s. department of labor's new rule clarifies employee and independent contractor status under the fair labor standards act

By: ronald l. tobia, esq. & othiamba n. lovelace, esq.

On January 6, 2021, the U.S. Department of Labor (USDOL) announced a final rule clarifying who is an “independent contractor” and who is an “employee” under the Fair Labor Standards Act (FLSA) and subject to its requirements. The USDOL’s final rule draws on the knowledge its staff gained by examining decades of court opinions and numerous State laws regarding the classification of workers as employees versus independent contractors. Over the past few decades, this issue has caused tension between politicians who support liberal worker-driven policies and politicians who support conservative entrepreneurial-focused policies.

Recently, this issue has gained prominence on the State level due to the rapid rise of internet-based ridesharing companies that consider their drivers to be independent contractors. For example, last year California passed a law that changed the classification of drivers for the prominent ridesharing companies to employees rather than independent contractors. However, the status change caused a public outcry from the independent contractor community because the changes placed significant economic pressure on workers who were traditionally considered independent contractors such as artists, photographers, and freelance writers. The independent contractor community expressed concerns that the status change deprived them of their ability to control their profits and losses and restricted their ability to create flexible and innovative work schedules. As a result, the California law was eventually modified in November 2020, and those workers regained their status as independent contractors.

Realizing that the States have been unable to find a uniform resolution to the independent contractor versus employee debate, the USDOL has stepped in by announcing its new rule that establishes a clear standard that should be used by employers to determine whether to classify a worker as an independent contractor or as an employee. While formulating this rule, the USDOL tried to strike a delicate balance between extending the protections offered to employees by the FLSA and encouraging the entrepreneurial spirit that motivates many workers that choose to be independent contractors.

After reviewing comments from over 1,800 individuals and organizations and analyzing decades of legal decisions that encompass various stances on the debate, the USDOL developed the “economic reality” test, which essentially poses this question: does the worker depend on a business or entity for the opportunity to work, or is the worker essentially in business for him or herself? The former is an employee, the latter an independent contractor.

The economic reality test considers whether a worker is in business for himself or herself (independent contractor) or is economically dependent on a putative employer for work (employee) by examining two core factors—namely, the nature and degree of the worker’s control over the work and the worker’s opportunity for profit or loss based on the worker’s own initiative or investment. The test identifies three other factors that can serve as further guideposts in the analysis: the amount of skill required for the work; the degree of permanence of the working relationship between the worker and the potential employer; and whether the work is part of an integrated unit of production. The rule also advises employers that the actual practice and general way the work is performed by their workers is more relevant to the economic reality analysis than what may be contractually or theoretically possible.

The final rule works to simplify compliance for businesses and aims to improve conditions for workers. The USDOL believes that by restructuring and clarifying the test to classify independent contractors, they can reduce the total number of workers who are misclassified. The improper classification of workers will still be vigorously prosecuted by the USDOL, and the State of New Jersey has also recently made a push to crack down on the intentional misclassification of workers by increasing the administrative penalties that can be assessed against employers for such offenses. For example, the Commissioner of New Jersey’s Labor and Workforce Development ("Commissioner") now has the power to issue a penalty against an employer in the amount of $250 per misclassified worker for first-time violations and $1,000 per misclassified worker for subsequent violations. Additionally, the Commissioner has the power to post the name of any person or entity (including, but not limited to, a company corporate officer or principal, corporations, contractors, and subcontractors) found to be in violation of any state wage, benefit, or tax law on the internet for public inspection.

The final rule issued by the USDOL becomes effective on March 8, 2021, and its clarity will hopefully make it easier for employers