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On Sept. 28, ABC submitted comments to the National Labor Relations Board on its proposed rule amending the agency’s representation election regulations under the National Labor Relations Act. Additionally, the ABC-led Coalition for a Democratic Workplace submitted comments in support of the NLRB’s proposal, officially titled Representation-Case Procedures: Voter List Contact Information; Absentee Ballots for Employees on Military Leave.

According to an NLRB news release, the proposed amendments include eliminating the requirement for employers to provide available personal email addresses and home and personal cellular telephone numbers of all eligible voters to the regional director and other parties during an election campaign and providing absentee ballots for employees who are on military leave.

In its comments, ABC expressed support for the long-overdue change to the NLRB’s required disclosure of personal email addresses and phone numbers of eligible voters. Further, ABC members have found the current voter eligibility list requirements to be unduly burdensome for employers, intrusive into employee privacy and an infringement on the rights of employers and employees to a fair preelection process.

Additionally, ABC expressed its support for the agency’s amendment to provide absentee mail ballots for employees on military leave, provided that employers are not subjected to additional burdens posed by the potential logistical challenges.

ABC’s general counsel, Littler Mendelson P.C., published an analysis with more information on the NLRB proposal.

ABC will continue to keep members informed of any developments about this rulemaking in Newsline.

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On Sept. 22 and 23, the U.S. Senate voted to confirm Andrea Lucas (R), Jocelyn Samuels (D) and Keith Sonderling (R) to serve as commissioners of the U.S. Equal Employment Opportunity Commission.

Prior to her confirmation, Lucas, who was confirmed by a Senate vote of 49-44, practiced in the Washington, D.C., office of Gibson, Dunn & Crutcher LLP in the firm’s labor and employment group for almost a decade, where she represented clients before the EEOC, other administrative agencies and federal and state courts nationwide in a wide variety of employment-related disputes. Additionally, Lucas served as a law clerk to Judge James C. Cacheris of the U.S. District Court for the Eastern District of Virginia. She will serve on the EEOC for a term expiring on July 1, 2025.

Samuels, who was confirmed by a Senate vote of 54-42, served as the executive director at the Roberta A. Conroy Scholar of Law and Policy at the Williams Institute at the University of California, Los Angeles School of Law. Previously, Samuels served multiple roles within the federal government, including director of the Office for Civil Rights at the U.S. Department of Health and Human Services and as a political appointee at the Civil Rights Division of the U.S. Department of Justice. She will serve on the EEOC for a term expiring on July 1, 2021.

Sonderling, who was confirmed by a Senate vote of 52-41, served as both a deputy administrator and acting administrator of the U.S. Department of Labor’s Wage and Hour Division. Before serving at DOL, Sonderling practiced labor and employment law at the Gunster Law Firm in West Palm Beach, Florida. He will serve on the EEOC for a term expiring on July 1, 2024.

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On Sept. 22, Bernalillo County’s board of commissioners passed an ordinance requiring a community workforce agreement, also known as a project labor agreement, on all construction projects performed for the county that are valued at more than $7 million. The threshold was originally set at $5 million, but was raised to $7 million after a 30-day comment period following the introduction of the ordinance in August.

The result makes Bernalillo County the second local government in New Mexico to require a CWA on public projects in the last decade. The previous instance occurred in Santa Fe in 2012, where city commissioners adopted a CWA ordinance that was rescinded a year later after pressure from local contractors concerning the discriminatory nature of the CWA, which excluded more than 90% of New Mexico contractors from working on projects in the city.

ABC’s New Mexico Chapter vocally opposed this CWA ordinance and will continue to advocate for its repeal.

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On Sept. 22, U.S. Rep. Garrett Graves (R-La.) introduced H.R. 8333, the Building U.S. Infrastructure Through Limited Delays & Efficient Reviews (BUILDER) Act. The legislation would codify much of the Council on Environmental Quality’s National Environmental Policy Act rulemaking, which ABC supports. Developed with input from the House Transportation and Infrastructure, Energy and Commerce and Judiciary committees, the bill includes important provisions to create a more efficient NEPA review process and clarifies which projects require NEPA review. This will promote better agency coordination and set reasonable time limits for preparing environmental documents.

Following the release of the BUILDER Act, ABC Vice President of Legislative & Political Affairs Kristen Swearingen issued the following statement:

“ABC applauds congressional leaders for introducing this legislation, which will go a long way toward eliminating unnecessary delays that cause budget overruns in construction. Construction businesses recovering from the ongoing health and economic crisis caused by COVID-19 will surely benefit from these modifications, which will help reduce costs and speed up project approvals so that hardworking U.S. workers can get back on the job quickly and safely.

“The coordinated, predictable and transparent process to streamline permitting will also enable the industry to plan and execute even the most complex projects while safeguarding our communities, maintaining a healthy environment and being good stewards of public funds.”

ABC is a member of the Unlock American Investment Coalition, which focuses on modernizing NEPA and unlocking American investment in modern, efficient infrastructure, creating middle-class sustaining jobs while advancing good environmental stewardship. To learn more, see the coalition’s fact sheet on modernizing NEPA.

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On Sept. 22, the U.S. Department of Labor announced a proposed rule that would revise its interpretation of independent contractor status under the Fair Labor Standards Act. The DOL indicates the proposal would offer clarity to determine whether a worker is an employee under the FLSA as well as promote certainty for stakeholders, reduce litigation and encourage innovation in the economy.

According to the DOL press release, the proposal would:

• Adopt an “economic reality” test to determine a worker’s status as an employee or an independent contractor under FLSA. The test considers whether a worker is in business for themselves (independent contractor) or is economically dependent on a putative employer for work (employee);  
• Identify and explain two “core factors,” specifically: the nature and degree of the worker’s control over the work and the worker’s opportunity for profit or loss based on initiative and/or investment. These factors help determine if a worker is economically dependent on someone else’s business or is in business for themselves;
• Identify three other factors that may serve as additional guideposts in the analysis, including: 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; and
• Advise that the actual practice is more relevant than what may be contractually or theoretically possible in determining whether a worker is an employee or an independent contractor.

To learn more about the proposed rule, see ABC general counsel’s analysis, “DOL Releases Proposed Regulation on Independent Contracting.”

The proposal is expected to be published in the Federal Register by the end of the week. The public will then have 30 days to comment. ABC National plans to submit a comment letter.

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On Thursday, Sept. 24, ABC will continue its Election Briefing Series with a national update from the National Republican Congressional Committee. It will be followed by a Mountain West and Pacific region election update on Thursday, Oct. 8, and a national update from the National Republican Senatorial Committee on Thursday, Oct. 22.

Registration is now open for all of these upcoming events, so make sure to register today.

These updates are a part of the ABC Election Update Series, which is powered by the Free Enterprise Alliance. It is reserved for ABC members and registration is free of charge thanks to our generous sponsors.

Please contact Melanie Pfeiffenberger, ABC National director of political affairs, for more information at pfeiffenberger@abc.org.

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On Sept. 14, 2020, in a 2-1 ruling, the 9^th U.S. Circuit Court of Appeals reversed and vacated a U.S. District Court’s preliminary injunction in 2018 that barred the Department of Homeland Security from implementing or enforcing its determinations to terminate Temporary Protected Status for Sudan, Nicaragua, Haiti and El Salvador while the case continued its way through the legal system.

The 9^th  Circuit’s ruling determined that the Trump administration’s decision to phase out TPS was not reviewable under the Administrative Procedures Act and that the plaintiffs failed to show a likelihood of success, or even serious questions, on the merits of their Equal Protection claim—in essence, paving the pathway for termination of TPS for those countries while a lawsuit on the merits of the termination proceeds.

ABC has continued to urge Congress to take legislative action to ensure that TPS holders can continue to work legally in this country. ABC and other construction industry leaders have expressed concerns about ending TPS designations in a 2017 letter and a 2018 letter to congressional leaders.

As a member of the Essential Worker Immigration Coalition, ABC supports the advancement of business-centric, balanced immigration reform to meet the needs of the American workforce and job creation. EWIC issued a statement on the Sept. 14 ruling that reiterated the coalition’s support for a legislative solution that provides a more permanent lawful status for immigrant workers, as many of those in TPS and DACA are contributing to our national economy, our communities and our industries.

TPS Background

Under the Immigration Act of 1990, the secretary of Homeland Security has authority to extend TPS protections to eligible foreign-born individuals if there is a crisis in their home country that prevents them from returning home, such as an armed conflict or environmental disaster. Designations are made for periods of six to 18 months and can be extended by the secretary after a review of the country’s conditions.

When a country is designated for TPS, foreign nationals from those countries who are in the United States when the designation is granted must apply and pay significant fees in order to be eligible to receive a temporary stay of deportation and temporary work authorization while their home country maintains its TPS designation. According to the Congressional Research Service, the United States currently provides TPS to approximately 411,000 foreign nationals from 10 countries: El Salvador, Haiti, Honduras, Nepal, Nicaragua, Somalia, South Sudan, Sudan, Syria and Yemen.

From September 2017 through May 2018, DHS announced the termination of TPS designations for Sudan, Nicaragua, Haiti and El Salvador. However, in a federal challenge, Ramos v. Nielsen, plaintiffs argued that the agency’s decisions violated the Administrative Procedures Act and their constitutional right to equal protection; a U.S. District Court enjoined DHS from implementing or enforcing the termination plans pending a final resolution of the case on the merits. As part of that injunction, TPS designations for these countries and thereby protections for beneficiaries were automatically extended through Jan. 2, 2020. To ensure its continued compliance with the preliminary injunction, DHS issued a subsequent notice automatically extending the TPS designations for Sudan, Nicaragua, Haiti and El Salvador through Jan. 4, 2021.

The Ruling’s Impact on the Construction Industry

The four countries subject to the 9^th  Circuit’s decision make up a supermajority of the TPS population in the United States—386,871—and their labor force participation rate tends to range from 81%—88%. According to a report in the Journal on Migration and Human Security, the construction industry employs 51,700 TPS beneficiaries from El Salvador, Honduras and Haiti—the largest percentage of any industry.

While the loss of so many construction workers would be harmful for the industry, it is important to note that TPS beneficiaries from the four countries will not see an immediate impact to their status or work authorization. Not including the additional time for the plaintiff-appellees to seek additional court review, TPS benefits will remain in place for at least 120 days following notice from the U.S. Citizenship and Immigration Services that the transition period has begun. Due to a bilateral agreement signed between the United States and El Salvador, TPS benefits for Salvadorans will remain in place for 365 days. Meanwhile, TPS benefits for Haiti will remain in place until further notice, pursuant to a preliminary injunction issued in a separate case, Saget v. Trump.

What’s Next

Ahilan Arulanantham at the American Civil Liberties Union of San Diego, who argued the case in court, said the ACLU plans to ask a full panel of 9^th  Circuit judges to review the case, which would likely result in further extension of TPS benefits for these four countries. The case is also likely to be eventually sent to the U.S. Supreme Court, which could further delay the outcome. This also means that any final determination on the status of TPS will be overseen by whichever party wins the November presidential election—Former Vice President Joe Biden has said that he intends to retain the program if he is elected president in November.

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ABC’s Chief Economist Anirban Basu reports on the construction backlog indicator which rose in August, according to an ABC analysis of data published by the U.S. Census Bureau. Confidence among U.S. construction industry leaders also rose in August regarding sales, staffing levels and profit margins, according to ABC’s Construction Confidence Index. 

To learn more visit abc.org/economics.

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On Sept. 11, the U.S. Department of Labor’s Wage and Hour Division issued revisions to the Families First Coronavirus Response Act regulations, which implement paid sick leave and expanded family and medical leave. FFCRA requires private-sector employers with fewer than 500 employees and certain public employers to provide covered employees emergency paid sick leave and expanded family and medical leave. The FFCRA’s paid leave provisions went into effect on April 1, 2020, and apply to leave taken between April 1, 2020, and Dec. 31, 2020.

The revisions clarify workers’ rights and employers’ responsibilities under the FFCRA’s paid leave provisions after an  Aug. 3 decision from the U.S. District Court for the Southern District of New York nullified key sections of the regulations.

According to a DOL press release, the revisions to the temporary rule do the following:

• Reaffirm and provide additional explanation for the requirement that employees may take FFCRA leave only if work would otherwise be available to them.
• Reaffirm and provide additional explanation for the requirement that an employee have employer approval to take FFCRA leave intermittently.
• Revise the definition of “healthcare provider” to include only employees who meet the definition of that term under the Family and Medical Leave Act regulations or who are employed to provide diagnostic services, preventative services, treatment services or other services that are integrated with and necessary to the provision of patient care which, if not provided, would adversely impact patient care.
• Clarify that employees must provide required documentation supporting their need for FFCRA leave to their employers as soon as practicable.
• Correct an inconsistency regarding when employees may be required to provide notice of a need to take expanded family and medical leave to their employers.

The revisions to the temporary rule will be effective from Sept. 16, 2020, through the expiration of the FFCRA’s paid leave provisions on Dec. 31, 2020.

FFCRA FAQs are available here.

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On Sept. 3, ABC sent a letter to  Rep. James Comer, the ranking member of the U.S. House of Representatives Committee on Oversight and Reform, explaining the negative impacts of the Obama administration’s regulatory expansion on ABC member contractors, as well as the Trump administration’s regulatory relief initiatives, which have helped to remove burdensome barriers to job creation.

“ABC member contractors applaud the Trump administration’s substantial deregulatory efforts, which brought to light cost and burdens these regulations put on contractors,” said ABC in the letter. “During the Obama administration, ABC members suffered from an aggressive and burdensome rulemaking agenda, where regulations were promulgated hastily with limited stakeholder input and questionable legal authority. Many of the Obama-era regulations were litigated, which created significant uncertainty for ABC member contractors and hampered economic growth. To promote economic growth, we must free industry from those regulations that create unnecessary and costly bureaucratic layers.”

ABC’s most pressing concerns are centered around three areas:

1. Government-mandated project labor agreement policies that are inconsistent across federal agencies
2. U.S. Department of Labor policies related to the Davis-Bacon Act that stifle competition and impose enormous burdens on contractor productivity and needlessly increase construction costs
3. DOL policies that serve as barriers to workforce development

ABC described how these issues have a chilling effect on competition and impede job creation and economic recovery:

1. Government-mandated PLAs

• Anti-competitive and costly government-mandated PLAs on federal and federally assisted contracts drive up the cost of taxpayer-funded construction projects by between 12% and 20%.
• Government-mandated PLAs unfairly discourage merit shop contractors, which employ more than 87.4% of the U.S. construction workforce, from bidding on the projects. The negative impact of PLAs disproportionately harms small businesses.
• The needless paperwork, waste and red tape associated with the federal government’s evaluation and procurement of federal contracts potentially subject to government-mandated PLAs is especially frustrating. ABC is aware of just 12 contracts exceeding $25 million (totaling $1.25 billion) that were procured and built in the United States subject to federal government-mandated PLAs and PLA preferences out of 1,681 federal contracts (totaling $98.74 billion) from FY2009 through FY2019 that were subject to the Obama administration’s pro-PLA Executive Order 13502.  
• In contrast, the prevalence of PLA mandates on federally assisted projects procured by certain blue states and localities are wasting billions of federal tax dollars, slowing the velocity of new infrastructure and stifling job creation and opportunity for all industry professionals during America’s economic recovery from the COVID-19 pandemic.

2. DOL’s Davis-Bacon Act policies

• ABC members frequently cite onerous Davis-Bacon Act regulations and compliance costs as reasons why they do not pursue public works projects subject to federal, state or local prevailing wage laws.
• Regulations implementing DOL’s Wage and Hour Division process to survey contractors and determine prevailing wage rates is inherently flawed and fails to produce accurate, prevailing or timely rates.
• In recent years, union wage rates have been found prevailing in a substantial majority of classifications, even though the percent of unionized workers in the U.S. construction industry measured by the Bureau of Labor Statistics has fluctuated between 12.6% and 14.5% during the past decade.
• DOL’s failure to provide detailed information about job duties that correspond to each published wage rate makes it difficult to determine the appropriate wage rate for many construction-related jobs. These wage determinations force federal contractors to use outdated and inefficient union job classifications that ignore the productive multitrade work practices successfully used in the merit shop construction industry.
• The Congressional Budget Office has estimated that the repeal of the Davis-Bacon Act would save $12 billion in federal construction costs between 2019 and 2028. ABC believes the CBO vastly underestimates the true inflated cost of the Davis-Bacon Act because the methodology is extremely conservative. In addition, the CBO does not address the associated increased costs on public works projects procured by state and local governments subject to state and local prevailing wage laws modeled after the federal Davis-Bacon Act. These are large markets and have a significant impact on state and local budgets and the quality of U.S. infrastructure, overall.

3. DOL’s workforce development policies

• To successfully expand apprenticeship opportunities and close the skills gap, all U.S. workers should have the opportunity to participate in DOL’s new industry-recognized apprenticeship program, particularly as federal registered apprenticeship programs supply only a small fraction of the construction industry’s workforce.
• While considering new industry programs in 2019, it appears DOL did not take into consideration that the overwhelming majority of America’s 8.17 million U.S. construction industry professionals never participated in any federal registered apprenticeship programs but are instead developed through industry-recognized and market-driven apprenticeships sponsored by companies large and small.
• Graduates of federal registered apprenticeship programs supply just 3.2% of the estimated 550,000 additional construction workers needed to meet industry demands in 2020 alone, according to ABC’s estimates prior to the economic downturn caused by the COVID-19 pandemic. At current levels of graduation, it would take more than 30 years for the federal registered apprenticeship program to meet industry demands for just this year.

Additionally, ABC identified the following anti-growth, Obama-era regulations that the Trump administration eliminated, reversed and/or modified. The Trump administration’s actions promote free enterprise, reduce regulatory burdens and costs and positively impact employers and workers in the industry.

• Rescinded the FAR Fair Pay and Safe Workplaces (Blacklisting) final rule
• Rescinded the DOL Persuader final rule
• Eliminated the OSHA Volks final rule

• Modified the DOL Overtime final rule
• Modified the OSHA Tracking of Workplace Injuries and Illnesses final rule
• Modified the OSHA Respirable Crystalline Silica final rule
• Modified the 2014 NLRB Ambush Elections final rule
• Reversed the 2015 NLRB Decision in Browning-Ferris Industries
• Repealed and replaced the 2015 WOTUS final rule

Lastly, ABC pointed out that ABC members continue to see meaningful regulatory relief from the Trump administration. In his first term so far, President Trump has eliminated $50.9 billion in overall regulatory costs across the government. ABC continues to strongly support comprehensive regulatory reform, which should include across-the-board requirements for agencies to evaluate the risks, weigh the costs and assess the benefits of regulations. This will better allocate limited resources and target efforts toward achieving the collective environmental, health and safety goals for the construction industry.

Read the full letter here.  

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