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On Aug. 24, the U.S. House of Representatives voted to advance a $3.5 trillion budget resolution, which was embedded in a House rule that tied its advancement to both the Senate’s bipartisan $1.2 trillion infrastructure package—the Infrastructure Investment and Jobs Act—and H.R. 4, the John R. Lewis Voting Rights Advancement Act.  The rule was approved by the House by a vote of 220-212, with all House Democrats supporting the rule and all Republicans voting in opposition.

The controversial passage of the joint rule moves the partisan budget reconciliation process, which will only require a simple majority of both chambers of Congress to be passed, forward, while also setting a Sept. 27 deadline for a House floor vote on the Senate’s bipartisan IIJA. House Speaker Nancy Pelosi, D-Calif., who has continued to call for passing the completed budget reconciliation bill before or in tandem with the bipartisan infrastructure proposal, committed to this Sept. 27 deadline in order to quell the concerns from a group of ten House Democratic moderates who are urging a vote on the IIJA before considering passage of the budget resolution.

Before the House voted on the rule, ABC sent a letter opposing the reconciliation package and expressing concerns about the impact of the partisan proposal’s tax hikes and labor requirements on the nation’s construction industry.

Of note, key votes for Senate Democrats, Sen. Joe Manchin, D-W.Va., and Sen. Kyrsten Sinema, D-Ariz., have made clear their opposition to the $3.5 trillion price tag on the current budget proposal, and their opposition will likely lead to further discussions among Democrats on a viable proposal that can pass through both chambers while still supporting the resolution’s core policies, many of which are represented in President Biden’s American Families Plan.

Notably, H.R. 4, the John R. Lewis Voting Rights Advancement Act, was immediately passed by the House of Representatives after the rule was advanced by a vote of 219-212. In 2013, key provisions enacted as part of the 1965 Voting Rights Act were invalidated by the U.S. Supreme Court, freeing up nine states to enact new election laws without federal approval in advance. House Democrats characterize H.R. 4 as seeking to restore voting protections for minorities as states implement new election laws, while the bill was opposed by Republicans who were concerned about federal overreach into the state-administered election process. Unlike the ABC-opposed For The People Act (H.R. 1/S. 1), this legislation is narrowly focused on the judiciary and avoids larger election reform issues supported by Democrats. H.R. 4 is not expected to gain traction in the U.S. Senate, as it is subject to the 60-vote threshold.

The House committees intend to mark up the $3.5 trillion reconciliation bill next week, with plans to assemble the full package by mid-September, ahead of the promised vote on the IIJA on Sept. 27. The Senate, which passed its respective budget resolution on Aug. 11, has also instructed its relevant committees to formulate its budget reconciliation bill, which will need to be combined with the eventual product from the House. 

Congress now faces several critical deadlines at the end of September, including the expiration of the current surface transportation authorization and government funding for federal agencies, as well as the need to raise the debt ceiling.

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The Protecting the Right to Organize Act would produce significant economic costs for the nation’s 27 right-to-work states in an effort to increase union power at the expense of worker freedom and small businesses, according to a report issued by the American Action Forum on Aug. 13.

Three major PRO Act provisions—repealing right-to-work legislation, reclassifying independent workers as employees and broadening the joint employer standard—would have the biggest negative impact on Arizona, Florida, Georgia, Indiana, Louisiana, Nevada, North Carolina, South Carolina, Tennessee, Texas and Virginia. 

According to the report:

• The PRO Act’s independent worker reclassification provision alone could cost as much as $57 billion nationwide.  
• The joint employer changes would cost franchises up to $33.3 billion a year, lead to more than 350,000 job losses and increase lawsuits by 93%. 
• Between 2000 and 2015, RTW states saw a 13.3% increase in the number of businesses in their states, while non-RTW states saw only 4.1% growth in businesses. 

“This report shows the crushing economic impact the PRO Act would have on states with right-to-work laws, which have given them a competitive advantage in attracting small businesses, good paying jobs and emerging industries,” said Kristen Swearingen, ABC vice president of legislative & political affairs and chair of the Coalition for a Democratic Workplace.  “Any member of Congress representing a right-to-work state should take a serious pause in supporting the PRO Act, as their vote could literally put tens of thousands of their constituents out of work and force thousands of small businesses in their states to close their doors permanently.”

ABC members can read the full statement on this report on myprivateballot.com.

CDW has created a grassroots toolkit for ABC chapters and members to use to help educate policymakers about the bill. The toolkit includes a fact sheet on the bill, a video explaining the worst provisions of the legislation, a provision summary and a sample letter you can send to Congress.  

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On July 29, the U.S. Department of Labor’s Occupational Safety and Health Administration and the National Institute for Occupational Safety and Health issued an updated Small Business Safety and Health Handbook to further provide small business employers with workplace health and safety information.

The handbook includes resources, such as the benefits of implementing a health and safety program, OSHA-approved state-specific plans, National Institute for Occupational Safety and Health resources and OSHA tools.

Additionally, the handbook includes self-inspection checklists for employers. However, the handbook emphasizes that the checklists “are intended for general industry workplaces, but not for construction or maritime industries.”

The updated handbook and additional state health and safety plans can be found on the OSHA website.

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From Aug. 9-16, ABC celebrated Safe + Sound Week to recognize the successes of workplace health and safety programs and offer information and ideas on how to keep America’s workers safe. ABC recognized these programs by sharing aspects of total human health with its members, including:

ABC chapters and members were also asked to use the hashtags #SafeAndSoundAtWork and #ABCMeritShopProud to raise awareness on social media.

The ABC National social media posts received more than 24,000 impressions, and more than 20 chapters shared assets and resources to their members.

For more information on Safe + Sound Week, visit osha.gov/safeandsoundweek.

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On Aug. 11, The U.S. Senate passed a Budget Resolution on the Budget for Fiscal Year 2022 before leaving for its August recess in a 50-49 vote that will set the stage for a proposed $3.5 trillion partisan spending bill through the budget reconciliation process. Prior to the final vote, Senate Majority Leader Chuck Schumer, D-N.Y., also released reconciliation instructions for Senate committees so they can begin to draft relevant sections of the final spending bill as it relates to their policy areas, which they hope to finish by Sept. 15.

This action represents the first significant step to write and pass a detailed $3.5 trillion budget, which under the reconciliation process will also only require a simple majority for passage. The resolution will need to pass Congress with only Democratic votes, as Republicans are expected to vote solidly against the bill which they will not be consulted on and which is expected to include the tenets of President Biden’s American Families Plan. Although the details of the legislation are yet to be drafted, it is expected to include significant tax increases on corporations and individuals while implementing several expansive social policies.

As detailed by the Senate Budget Committee Chair, Bernie Sanders, D-Vt., the measure seeks to establish universal pre-K for 3- and 4-year-olds and make community college tuition-free for two years; establish a Civilian Climate Corps; add new dental, vision and hearing benefits to Medicare coverage; make a “historic level” of investment in affordable housing; lower the cost of prescription drugs; and provide “green cards to millions of immigrant workers and families.” However, reports have also indicated that Democrats will seek to insert harmful labor provisions in the reconciliation package, which could include exempting union dues from taxes and monetary penalties for employers that interfere with workers’ union rights.

Democrats might also look to include new requirements that would make it harder for workers to qualify as independent contractors and additional financial support for striking workers. Notably, the provisions would need to pass the scrutiny of the budget reconciliation Byrd Rule, which prevents extraneous measures from passing through the reconciliation process, though Senate Democrats believe the employer penalties and tax provision should be deemed germane to the federal budget.

Before passing the resolution, the Senate considered a series of nonbinding votes known as “vote-a-rama” amendments to the budget resolution. ABC, as part of the Main Street Employers Coalition, also issued a statement of support for an amendment from Sen. Steve Daines, R-Mont., that would prevent changes to the 199A tax deduction for small businesses. That amendment passed by voice vote, along with other critical tax amendments from Sen. John Thune, R-S.D., to protect businesses against stepped-up basis; from Sen. John Kennedy, R-La., that would maintain the current tax treatment of like-kind exchanges; and from Sen. Todd Young, R-Ind., that would prevent tax increases on anyone making less than $400,000 a year.

The resolution has now been sent to the House for consideration. On Aug. 10, Speaker Nancy Pelosi, D-Calif., and House Majority Leader Steny Hoyer, D-Md., informed House members that they would be returning from recess early, on Aug. 23, to begin to consider the resolution and unlock the budget reconciliation process that could, paired with the recently Senate-passed bipartisan Infrastructure Investment and Jobs Act, pass in the House later this fall.

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On Aug. 10, the U.S. Senate passed the bipartisan Infrastructure Investment and Jobs Act with bipartisan support in a 69-30 vote, with 19 Republicans joining all 50 senators in the Democratic caucus to approve the legislation.

The IIJA provides approximately $1.2 trillion, including $550 billion in new spending, for physical infrastructure investments throughout the country, including $110 billion for roads, bridges and major projects; $66 billion for passenger and freight rail; $65 billion for broadband infrastructure; $55 billion for water infrastructure; $39 billion for public transit; $25 billion for airport improvements and $16.6 billion for ports and waterways.

The bipartisan deal includes the ABC supported, bipartisan Surface Transportation Reauthorization Act passed earlier this year by the U.S. Senate Environment and Public Works Committee. This reauthorization provides a 34% increase in federal funding for the nation’s transportation infrastructure and includes hard-fought provisions to expedite the federal permitting process for construction projects and supports workforce development opportunities for hardworking Americans.

Prior to the passage of the bill, ABC highlighted its priorities and the wins included in the bill as well as concerns with several labor provisions and potential executive action from the White House. Of note, as the Senate considered the bill, ABC strongly advocated for fair and open competition, which resulted in no government-mandated project labor agreement language in the legislation.

ABC remained neutral on the legislation, neither opposing nor supporting the bill. After the bill passed in the Senate, ABC President and CEO Mike Bellaman issued a statement noting the bipartisan accomplishments of the bill while raising concerns about its implementation should it be signed into law and actions the administration has signaled it could take to limit participation from merit shop contractors.  

“This infrastructure package contains the most significant investment in our nation’s infrastructure in a generation and could yield crucial wins for the American people and construction industry,” Bellaman said. “President Biden and his administration must refrain from partisan favoritism in awarding contracts and commit to ensuring all of America’s construction industry can participate in the important work of modernizing the nation’s infrastructure.” 

While the bill passed the Senate, it is not guaranteed to pass the House, as House Speaker Nancy Pelosi D-Calif., continues to insist on pairing the consideration of the bipartisan IIJA with the partisan budget reconciliation, which Senate Democrats also passed on Aug. 10.

Notably, Speaker Pelosi and House Majority Leader Steny Hoyer, D-Md., have informed House members that they will be returning from their August recess early, on Aug. 23, after previously scheduling the House to return on Sept. 20. However, the House now plans to return to Washington, D.C., to start work on their portion of the partisan $3.5 trillion budget resolution as well as considering H.R. 4, the John Lewis Voting Rights Act. House Democrats could also consider additional legislation; however, they do not appear to be poised to take up the bipartisan Infrastructure Investment and Jobs Act for final passage until the reconciliation package is finished later this fall.

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Beginning Aug. 4, the U.S. Small Business Administration is launching a portal that will allow borrowers of certain Paycheck Protection Program loans to streamline the process of loan forgiveness by applying for forgiveness directly through the SBA.

According to an SBA news release, the portal will allow borrowers of $150,000 or less in PPP loans through participating lenders, which totals 6.5 million small businesses, to apply for direct forgiveness with the agency. The news release also states lenders are required to opt in to this program at directforgiveness.sba.gov.

The SBA has also set up a PPP customer service team to answer questions and directly assist borrowers with their forgiveness applications. Borrowers that need assistance or have questions should call (877) 552-2692, Monday-Friday, 8 am-8 pm ET.

Additional information on the PPP, which ended on May 31, 2021, can be found on the SBA website and on the ABC Coronavirus Update webpage.

Background

Established by H.R. 748, the Coronavirus Aid, Relief, and Economic Security, or CARES, Act, the PPP provided nearly $800 billion in economic relief to more than 8.5 million businesses throughout the course of the program. In 2021 alone, small businesses in the construction industry received roughly $33.5 billion in loans, or 12% of total PPP funds.

ABC submitted comments on multiple PPP rulemakings, expressing support for the program and urging SBA and the U.S. Department of the Treasury to take further action to assist small businesses.

While the PPP ended on May 31, SBA also offers additional COVID-19 relief options, which can be found on the agency website.

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On July 29, the U.S. Department of Labor announced a final rule to rescind the 2020 Joint Employer Status under the Fair Labor Standards Act rule, which goes into effect on Sept. 28, 2021.

An analysis written by ABC National’s general counsel Littler Mendelson states, “Courts are now likely to return to the application of various, and not always consistent, multi-factor tests derived from the cases interpreting the Department’s outdated 1959 standard.  This in turn means less certainty for employers as to when they may be liable for wage and hour violations under the FLSA as a “joint employer” of an unrelated company’s employees.”

ABC released the following statement on DOL’s rescission of the 2020 final rule, “While we certainly saw this coming, it is still disappointing that the Biden administration rescinded the 2020 joint employer final rule,” said Ben Brubeck, ABC vice president of regulatory, labor and state affairs. “ABC supported the prior final rule because it promised to bring additional clarity to a confusing area of the law, help alleviate unnecessary barriers to and burdens on contractor and subcontractor relationships throughout the construction industry, reduce needless litigation and encourage innovation in the economy.”  

The 2020 joint employer final rule promised to make the joint employment test narrower and more focused and went into effect on March 16, 2020. In February 2020, 18 states sued DOL in federal court to strike down its joint employer final rule, and in September 2020, a U.S. District Court for the Southern District of New York judge ruled that parts of the final rule were illegal.

A business coalition that includes ABC intervened in the case, in part to defend the construction industry against unwarranted attacks by the state plaintiffs on the industry’s long-established methods of doing business. The case is currently on appeal to the Second Circuit Court of Appeals.

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