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On June 4, Florida Gov. Ron DeSantis addressed ABC chapters and members at ABC Legislative Day 2021 in Ponte Vedra Beach, Florida. The governor was introduced by Tim Keating, ABC’s immediate past chair of the board.

Gov. DeSantis kicked off his remarks by highlighting the successes in his state during the global pandemic, including the opening of businesses and the education system.

“We’ve had a lot of upheaval across the world and country. A lot of entities put people down, but Florida’s goal was to lift people up,” he said. “Everybody has a right to work and every business has the right to operate in Florida.”

DeSantis also talked about the importance of getting kids back to school and said that higher education programs, such as four-year universities, were not the only tickets to success.

“We’ve promoted trade, technical education and apprenticeship opportunities,” he said.  “You are still employable by taking one of these educational routes and you’ll have no debt.”

DeSantis recommended that ABC members get high school seniors into construction because people will hire them if they do the job well.

“We’ve got to focus on the workforce,” he said. “We are working with partners, communities and businesses to make sure there is not a stigma about going into skilled trades.”

Later in his speech, DeSantis said that rising gas materials prices were among the top inflationary pressures on the economy. He also discussed thriving industries in Florida, such as financial services and private aviation, and how his administration is standing by police and holding big tech monopolies accountable.

“At the end of the day, I want to err on the side of protecting people’s freedoms,” he said. “Simply subcontracting out our free speech writers to those in Silicon Valley just will not work.”

His parting words to the crowd led to a standing ovation: “You’ve got to be a leader in the climate we are in now, and you’ve got to stand strong and hold the line. You cannot let people stop you from doing what’s right.”

Gov. DeSantis was accompanied by his wife and two of his three children at the event.

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On May 27, ABC wrote to U.S. Department of Labor Secretary Martin Walsh to share the exceptional results of the 2021 Workforce Development Survey. ABC hopes this outreach will encourage Secretary Walsh to work with ABC to advance the interests of the entire construction industry. 

ABC President and CEO Mike Bellaman highlighted in the letter that “In 2020 alone, ABC contractor members invested $1.3 billion in workforce development initiatives, providing craft, leadership and safety education to 500,000 course attendees to advance their careers in commercial and industrial construction, according to the survey. ABC members invested an average of 8.4% of payroll on workforce development in 2020, up from 7.9% in 2019.

“Safety education accounted for 71% of total annual workforce education spending, averaging $2,369 per employee, to keep workers safe during the COVID-19 pandemic. This was roughly double the $1,147 per-person investment in 2019.”

The letter also highlighted the results of ABC’s 2021 Safety Performance Report, which documents the dramatic impact of the STEP Safety Maangement System to reduce recordable incidents by up to 85%, making the best-performing ABC member companies 655% safer than the U.S. Bureau of Labor Statistics industry average. The report is based on data gathered from STEP participants that recorded nearly one billion hours of work in construction, heavy construction, civil engineering and specialty trades in 2020.

Other findings of the 2021 ABC Workforce Development Survey in the letter include:

• The percentage of contractor members reporting a severe labor shortage declined 3% between 2019 and 2020, while those reporting a moderate labor shortage increased 5%.
• Women in management/supervisory roles ticked up to 17% of the ABC member workforce in 2020 from 16% in 2019, and
• Approximately 70% of member contractors reported partnerships with high school and college career and technical education internship programs.

“America’s economic engine is fueled by a workforce equipped with durable and transferable skill sets, and ABC members are dedicated to investing in essential education and professional development for craft and management professionals. Apprenticeship and career technical education provide the right tools to our nation’s workforce to not only build the places where Americans live, work, heal, play and learn, but also to cultivate long-lasting and rewarding career opportunities,” Bellaman wrote.

ABC looks forward to working with Secretary Walsh and his staff to advance policies that keep workplaces safe and healthy, create jobs for all Americans and help the U.S. economy continue to rebound from the COVID-19 crisis.

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ABC is pleased the U.S. Equal Employment Opportunity Commission has issued long-awaited guidance on COVID-19 vaccinations as it relates to the workplace. On Feb. 1, ABC joined 41 trade associations in urging the EEOC to quickly issue guidance clarifying the extent to which employers may offer employees incentives to vaccinate without violating the Americans with Disabilities Act and other laws enforced by the EEOC.

According to the EEOC press release, “The expanded technical assistance provides new information about how the ADA and the Genetic Information Nondiscrimination Act apply when an employer offers incentives for employees to provide documentation or other confirmation of vaccination when an employee gets a vaccine in the community or from the employer or its agent. The technical assistance answers COVID-19 questions only from the perspective of the EEO laws. Other federal, state, and local laws come into play regarding the COVID-19 pandemic for employers and employees.”

The key updates to the technical assistance are summarized below:

• Federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, so long as employers comply with the reasonable accommodation provisions of the ADA and Title VII of the Civil Rights Act of 1964 and other EEO considerations. Other laws, not in EEOC’s jurisdiction, may place additional restrictions on employers. From an EEO perspective, employers should keep in mind that because some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination than others, some employees may be more likely to be negatively impacted by a vaccination requirement.
• Federal EEO laws do not prevent or limit employers from offering incentives to employees to voluntarily provide documentation or other confirmation of vaccination obtained from a third party (not the employer) in the community, such as a pharmacy, personal health care provider or public clinic. If employers choose to obtain vaccination information from their employees, employers must keep vaccination information confidential pursuant to the ADA.
• Employers that are administering vaccines to their employees may offer incentives for employees to be vaccinated, as long as the incentives are not coercive. Because vaccinations require employees to answer pre-vaccination disability-related screening questions, a very large incentive could make employees feel pressured to disclose protected medical information.
• Employers may provide employees and their family members with information to educate them about COVID-19 vaccines and raise awareness about the benefits of vaccination. The technical assistance highlights federal government resources available to those seeking more information about how to get vaccinated.

Read all of the updates to the guidance (refer to Part K. Vaccinations).

Additionally, the EEOC posted a new resource for job applicants and employees, titled “Federal Laws Protect You Against Employment Discrimination During the COVID-19 Pandemic,” to help employees and employers understand their rights and responsibilities at work during the pandemic.

To learn more, read ABC counsel Littler Mendelson’s analysis, “Key Takeaways from the EEOC’s Updated Guidance Regarding COVID-19 Vaccinations, Incentives.”

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The AQC program is a holistic cultural assessment of a company based on the five core areas of responsibility:

• Quality
• Safety
• Education
• Talent management
• Community relations and diversity

The program sets companies apart from other contractor firms and gains them visibility within the industry through national publications, such as Construction Executive. Plus, AQC members can use the program marketing tools to promote their credentials, including customized letters of recommendation, news release templates, use of the logo on hard hats, jobsite signage and bid documents, and more.

The recognition doesn’t stop there. In March, ABC released its 2021 Top Performers lists to recognize ABC member contractors’ achievements in safety, quality, diversity and project excellence ranked by work hours, with special designations identified. Published as a supplement to Construction Executive magazine, the lists identify the top performing ABC members ranked by work hours. Learn more and check out the Top Performers lists here.

Apply today!

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The Biden administration and U.S. Department of Treasury have taken another unfortunate step promoting controversial, anti-competitive and costly government-mandated project labor agreements, local hire and Davis-Bacon/prevailing wage policies on federally assisted taxpayer-funded construction projects.

On May 10, the U.S. Department of the Treasury released an interim final rule on the $350 billion worth of federal funding for state and local fiscal recovery allocated in the American Rescue Plan, which was signed into law by President Joe Biden on March 11.

As part of the interim final rule, Treasury released a fact sheet detailing how this money can be used to offset state and local budget shortfalls, support COVID-19 response efforts and address economic stabilization for households and businesses.

Notable guidance discussing how funding can be used for eligible construction projects, including broadband, water and sewer infrastructure, is addressed in the fact sheet and in the interim final rule and contains troubling language promoting the use of government-mandated PLAs, local hire and Davis-Bacon/prevailing wage regulations:

“It is important that necessary investments in water, sewer, or broadband infrastructure be carried out in ways that produce high-quality infrastructure, avert disruptive and costly delays, and promote efficiency. Treasury encourages recipients to ensure that water, sewer, and broadband projects use strong labor standards, including project labor agreements and community benefits agreements that offer wages at or above the prevailing rate and include local hire provisions, not only to promote effective and efficient delivery of high-quality infrastructure projects but also to support the economic recovery through strong employment opportunities for workers. Using these practices in construction projects may help to ensure a reliable supply of skilled labor that would minimize disruptions, such as those associated with labor disputes or workplace injuries.

“To provide public transparency on whether projects are using practices that promote on-time and on-budget delivery, Treasury will seek information from recipients on their workforce plans and practices related to water, sewer, and broadband projects undertaken with Fiscal Recovery Funds. Treasury will provide additional guidance and instructions on the reporting requirements at a later date.”

Treasury Language Will Create Confusion, But Does Not Mandate Labor Requirements

“To be clear, this is not a mandate requiring states and localities to use controversial PLAs and other pro-labor provisions as a condition of accessing federal ARP money for applicable water, sewer, broadband and other infrastructure projects,” said Ben Brubeck, ABC’s vice president of regulatory, labor and state affairs. “However, the practical impact of this language is unknown at this time. State and local governments and construction industry stakeholders will have to wait for additional Treasury guidance and rulemaking about reporting requirements at a date to be determined to alleviate any questions or confusion.”

“The latest effort by the Biden administration to steer public works construction projects to unionized contractors and union labor at the expense of taxpayers and fair and open competition on federally assisted projects is sure to create confusion for state and local governments,” said Brubeck. “It will also harm local construction workers and small businesses not affiliated with trade unions from rebuilding their communities and benefiting from federal investment in state and local construction projects.”

On May 17, the Federal Register published the Treasury’s interim final rule and is giving respondents until July 16 to submit comments in response to the rulemaking.

Learn more about the Treasury rulemaking and stay tuned for additional insights from ABC National about ways stakeholders can engage in regulatory, advocacy and legal strategies to ensure fair and open competition on federally assisted construction projects.

Corrupt Government-mandated PLAs Rig the Bidding Process

Government-mandated PLAs rig the bidding process to discourage experienced nonunion and some union contractors and their qualified workforce from competing to build transformational taxpayer-funded projects. They also deny well-paying local jobs to the more than 87% of U.S. construction industry workers who choose not to affiliate with unions.

Problematic terms in government-mandated PLAs discourage competition by forcing contractors to:

• Use union hiring halls to obtain most or all workers instead of their existing workforce.
• Obtain apprentices exclusively from union apprenticeship programs.
• Follow inefficient union work rules.
• Pay into union benefit and multi-employer pension plans that the few nonunion employees permitted on the project will be unlikely to access unless they join a union and vest in these plans.
• Require their existing workforce to accept union representation, pay union dues and/or join a union as a condition of employment and receiving benefits on a PLA jobsite, resulting in an estimated 20% hit to the paychecks of local craft professionals.

Taxpayers and industry stakeholders should be deeply concerned that the 117^th Congress and the Biden administration will expand the use of government-mandated PLAs on federal and federally assisted construction projects.

Treasury’s pro-PLA language is consistent with language in the Biden administration’s March 31 release of the American Jobs Plan, an outline of $2.25 trillion of government spending that includes investments in infrastructure and clean energy that the administration wants to be built with union labor at the expense of the 87% of the construction workforce that freely chooses not to join a union.

In response, ABC has raised concerns about the AJP’s tax hikes on small businesses and language calling on Congress to pass the ABC-opposed Protecting the Right to Organize Act and tie controversial government-mandated PLAs to federal investments in infrastructure via forthcoming legislation.

On May 5, ABC and a coalition of 16 industry and employer groups sent a letter to President Biden raising concerns about the administration’s direct expansion and support of legislative policies encouraging or requiring controversial government-mandated project labor agreements on federal and federally assisted construction projects.

“Simply put, the Biden administration cannot meet its infrastructure, affordable housing and clean energy agenda without strong participation from the construction industry directly harmed by anti-competitive and costly government-mandated PLA policies,” said the coalition letter.

The coalition also launched a website, BuildAmericaLocal.com, to educate the public about government-mandated PLAs on federal and federally assisted construction projects and stakeholders can write their elected officials in support of fair and open competition.

In an April 28 op-ed published in The Hill, titled America can build back better through fair and open competition, ABC pushed back on controversial provisions in the AJP that would harm the merit shop contracting community:

“At a time when our economy is showing signs of recovery, the Biden administration and Congress should support policies that help bring our economic engine roaring back to life. Fair and open competition on taxpayer-funded construction projects will ultimately result in savings to taxpayers, more opportunities and jobs for all qualified local small businesses, minorities and women in the construction industry, and the construction of more quality infrastructure projects so America can Build Back Better and faster.”

ABC and the coalition are monitoring the Biden administration’s executive actions, federal agency policies and legislation introduced in the 117^th Congress that might promote government-mandated PLAs and exclude quality contractors and 87% of the construction industry from competing to win contracts to build construction projects funded and authorized in forthcoming spending and infrastructure legislation.

ABC and the coalition also support the Fair and Open Competition Act (S. 403/H.R. 1284), reintroduced in the 117^th Congress by Sen. Todd Young (R-Ind.) and Rep. Ted Budd (R-N.C.), which would restrict government-mandated PLAs on federal and federally assisted construction projects.

In a Feb. 24 press release, ABC applauded the introduction of the bill that would encourage more qualified construction companies to compete for federal and federally funded construction projects, providing value for hardworking taxpayers while benefiting the construction industry.

After the bill was introduced, an ABC-led coalition of 17 construction industry and business associations sent a letter to Congress in support of the bill, urging them to immediately pass this legislation.

ABC encourages ABC chapters, members and industry stakeholders to participate in a grassroots campaign urging their U.S. House and Senate lawmakers to sign on as a co-sponsor of FOCA in the 117^th Congress.

ABC members can learn more about ABC’s historical efforts opposing government-mandated PLAs, ABC’s current campaign and the coalition’s campaign in support of fair and open competition benefiting taxpayers and the local construction industry.

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On May 14, the Coalition for Workforce Innovation, ABC, ABC Southeast Texas Chapter and the Financial Services Institute filed an amended complaint challenging the U.S. Department of Labor’s unlawful withdrawal of the independent contractor rule. The Department’s hasty and unjustified action violates the Administrative Procedure Act, compounding a violation that began when the department improperly delayed the effective date of the rule in March.

“The Independent Contractor Rule is an important and necessary action by the previous administration that brought much needed clarity and guidance to the proper classification of contractors under the Fair Labor Standards Act,” said Ben Brubeck, Associated Builders and Contractors vice president of regulatory, labor and state affairs, in a joint statement released by the coalition. “For too long, businesses and contractors who want to remain independent have been subjected to burdensome lawsuits and inconsistent court rulings under the FLSA. The department’s improper delay and withdrawal of the rule walks us backwards and does nothing to address the very real problems confronting millions of contractors who have made the choice to remain independent.”

On May 5, the U.S. Department of Labor announced the withdrawal—effective May 6—of the Trump-era independent contractor final rule. ABC strongly supported the Trump DOL final rule, which would have clarified the department’s interpretation of independent contractor status under the Fair Labor Standards Act and promoted certainty for employers, independent contractors and employees.

“While we certainly saw this coming, it is still disappointing to see the Department of Labor chose to rescind the independent contractor final rule, which would have provided much needed clarity for the independent contracting community, employers and employees,” said Associated Builders and Contractors Vice President of Regulatory, Labor and State Affairs Ben Brubeck in a statement. “The withdrawal will harm small businesses and the entire construction industry. This move is not only in apparent violation of the Administrative Procedure Act, but also brings independent contractors—an essential lifeline to the construction industry—back to the inadequate standards previously in place, which could damage the U.S. economy and deprive many independent workers of opportunities to succeed.”

“ABC has already filed a federal court complaint challenging the Department of Labor’s unlawful delay of the rule’s effective date beyond March 8. We intend to amend our complaint to contest the department’s claimed authority to withdraw the rule, which compounds the department’s violation of APA requirements.”

According to the DOL press release, the agency is withdrawing the Trump DOL final rule for several reasons, including:

• The independent contractor rule was in tension with the FLSA’s text and purpose, as well as relevant judicial precedent.
• The rule’s prioritization of two “core factors” for determining employee status under the FLSA would have undermined the longstanding balancing approach of the economic realities test and court decisions requiring a review of the totality of the circumstances related to the employment relationship.
• The rule would have narrowed the facts and considerations comprising the analysis of whether a worker is an employee or an independent contractor, resulting in workers losing FLSA protections.

Background and ABC Actions:

On Feb. 5, the WHD proposed to delay the effective date of the final independent contractor rule from March 8 to May 7. On Feb. 22, ABC filed a request for extension of time to file comments on the delay proposal and further protested the department’s restriction on the nature of comments that could be filed.  The department denied the extension request on Feb. 24.

On Feb. 24, ABC submitted comments arguing that the WHD’s hasty and unsupported attempt to delay the effective date of the independent contractor final rule was arbitrary, capricious and in violation of the Administrative Procedure Act. ABC therefore urged the WHD to maintain the final rule’s effective date of March 8.

On March 4, the WHD issued a final rule that delays the Trump DOL’s independent contractor final rule’s effective date from March 8 to May 7, 2021. Soon after, on March 12, DOL issued a proposal to withdraw the independent contractor final rule.

On March 26, ABC, ABC Southeast Texas Chapter and the Coalition for Workforce Innovation filed suit against DOL for delaying the effective date of the independent contractor final rule and proposing to withdraw it. The filed complaint asserts that the steps taken by DOL to negate the independent contractor final rule are in violation of the Administrative Procurement Act.  ABC’s general counsel, Littler Mendelson P.C., is representing the plaintiffs in the legal challenge.

On April 12, ABC submitted comments in opposition to the DOL’s proposal to withdraw the independent contractor final rule. ABC argued that the final delay rule was unlawfully promulgated and because the department’s subsequent proposal to withdraw the independent contractor final rule relied on the unlawfully promulgated rule for the assertion that the independent contractor final rule had not already gone into effect, the subsequent proposal itself must be ordered withdrawn.

ABC will continue to monitor this important issue and provide any updates in Newsline.

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