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On Sept. 8, a U.S. District Court for the Southern District of New York judge ruled that parts of the U.S. Department of Labor’s joint employer final rule, which was issued on Jan. 16, 2020, are illegal. Associated Builders and Contractors had applauded the 2020 joint employer final rule, which promised to make the joint employment test more narrow and focused when it went into effect on March 16. 

“The Trump administration’s joint employer regulation 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,” said Ben Brubeck, ABC vice president of regulatory, labor and state affairs. “We are disappointed that the Obama-appointed judge misapplied precedent in failing to defer to the DOL’s guidance and refusing to uphold the new rule in its entirety. We believe the judge got it wrong on both procedural and substantive grounds, strongly suggesting the need for an appeal.”

The court struck down the rule as it applies to “vertical” employment, which occurs when an employee works for one company but may be economically dependent on or controlled by another company. The decision does not affect “horizontal” employment, which occurs when the employee has employment relationships with two or more employers and the employers are sufficiently associated.

“Unfortunately, vertical joint employment, which occurs when an employee works for one company but may be economically dependent on or controlled by another company (staffing, contracting, franchising, etc.) is the type of relationship that caused so much confusion under the previous rule,” said Brubeck.

In February, 18 blue states sued DOL in federal court to strike down its final rule updating and clarifying its interpretation of joint employment, officially titled Joint Employer Status Under the Fair Labor Standards Act. A business coalition that includes ABC intervened in the case, in part to defend the construction industry against unwarranted attacks on the industry’s long-established methods of doing business by the state plaintiffs. ABC’s general counsel, Littler Mendelson P.C., handled the intervention filings.

Read ABC’s comments in support of DOL’s 2020 joint employer proposed rule.

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On Aug. 31, the U.S. Department of Labor’s Occupational Safety and Health Administration issued a final rule amending its standards for occupational exposure to beryllium and beryllium compounds in the construction and shipyard sectors. ABC and other construction organizations previously filed a settlement with the agency to effectively narrow the scope of the Obama administration’s beryllium final rule, which would have applied a comprehensive, burdensome set of requirements related to beryllium on all construction employers.

As part of the settlement, filed in the Eighth Circuit Court of Appeals on Aug. 25, OSHA agreed to issue an FAQ that makes clear that for normal construction operations, exposures to common construction materials will typically not be covered by the rule. The FAQ states, “exposure to rock, soil, concrete and brick at the typical construction site will not result in beryllium exposure above the action level under foreseeable conditions.” and thus, will  not be covered by the rule. This outcome addresses the concerns of ABC, the National Association of Home Builders and the Mason Contractors Association of America and provides certainty for contractors in how they approach and prioritize their safety and health programs.

According to a DOL news release, the final rule, officially titled Occupational Exposure to Beryllium and Beryllium Compounds in Construction and Shipyard Sectors, amends the standard’s sections on methods of compliance, respiratory protection, personal protective clothing and equipment, medical surveillance, recordkeeping and more. Additionally, the language included in OSHA’s FAQ is part of the new final rule’s preamble.

The final standards will affect roughly 12,000 workers employed in nearly 2,800 establishments in the construction and shipyard industries and are estimated to yield $2.5 million in total annualized cost savings to employers.

The final rule will go into effect on Sept. 30, 2020. Additional  information on the rulemaking can be found on the DOL website.

As part of the Construction Industry Safety Coalition, ABC has been heavily involved in OSHA’s rulemaking efforts over the last several years in attempt to limit the application of the original rule within the construction industry. Specifically, on Nov. 7, 2019, CISC submitted comments to OSHA on a beryllium proposed rule that maintained the lower eight-hour permissible exposure limit and short-term (15-minute) exposure limit and made minor changes to the ancillary provisions of the beryllium standard that are tailored for the construction industry. Additionally, members of CISC participated in the informal public hearing on the rule held by the agency in 2019.

Several members of the CISC, which include ABC, NAHB and MCAA, also filed suit against OSHA in the D.C. Circuit Court of Appeals to challenge the original Obama administration’s rule and an interim Trump administration rule.

Read more about ABC’s actions in the beryllium regulatory process in Newsline.

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The ABC PAC is kicking off the Fall Meet & Greet Series with Sen. Todd Young (R-Ind.) on Tuesday, Sept. 15, from 4:15-4:45 p.m. ET.  This event is free of charge for all ABC members who have a completed a prior authorization for this calendar year.

Federal law requires members to sign a prior authorization form in order for the executive or administrative personnel of the member corporation to be solicited by ABC PAC. ABC members can complete the required prior authorization form through the online Prior Authorization Portal. Note, each company can only sign a prior approval form for one trade association this year. Please email ABC PAC with any questions.

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ABC’s Chief Economist Anirban Basu reports on the national nonresidential construction spending which fell 1.2% in July, according to an ABC analysis of data published by the U.S. Census Bureau.

To learn more visit abc.org/economics.

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On Aug. 31, the U.S. Department of Labor’s Wage and Hour Division published a notice in the Federal Register to announce that the minimum wage for federal contractors will increase from $10.80 per hour to $10.95 per hour beginning Jan. 1, 2021.

The increase is a result of the DOL’s 2014 final rule, which implemented Executive Order 13658 on Establishing a Minimum Wage for Contractors and raised the hourly minimum wage paid by contractors to workers on covered federal contracts to $10.10 with annual increases thereafter. This was determined by the secretary of labor in accordance with the methodology set forth in the order.

More information on EO 13658 and the annual wage increase can be found on the DOL website.

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On Thursday, Sept. 10, ABC will continue its Election Briefing Series with an exclusive Mid-America and Midwest region election update. It will be followed by two national updates from the National Republican Congressional Committee on Thursday, Sept. 24 and 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 Tuesday, Sept. 1, President Trump’s memorandum deferring payroll tax obligations went into effect.

According to ABC’s general counsel, Littler Mendelson P.C., this memorandum allows for the deferral of the employee portion of federal payroll taxes — 6.2% for social security and 1.45% for Medicare — from Sept. 1, 2020, until Dec. 31, 2020, for workers earning less than $4,000 on a biweekly basis or $104,000 annually. Under the guidance issued, an employer may elect to defer the payment of the employee portion of these taxes on “applicable wages” until next year, when they would be owed in installments between Jan. 1, 2021, and April 30, 2021, unless Congress acts to waive the repayment requirement. Tax experts have said the guidance leaves a number of key questions unanswered, such as what happens if an employee leaves a company before April 30, and how the guidance applies to seasonal workers and employees with irregular hours.

With the repayment requirement in place and the order voluntary, it seems that many employers will likely decline to implement a deferral for employees and continue to withhold the payroll taxes required by law.

For more information about this memorandum, you can read this guidance from the U.S. Treasury Department or this guidance from Littler.

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On Thursday, Aug. 27, the U.S. Department of Labor’s Wage and Hour Division published new frequently asked questions for workers and employers regarding qualifications for paid leave eligibility under the Families First Coronavirus Response Act, specifically adding new guidance detailing paid leave options related to schools reopening.

The FAQs address whether employees qualify for paid leave when:

For a detailed analysis of the new FFCRA FAQs, read New FFCRA FAQs Address Return-to-School Leave Issues, published by ABC general counsel Littler Mendelson, P.C. Additional FFCRA FAQs are available here.

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.

This latest FAQ adds to the multiple tools the DOL has already made available to advise on paid leave eligibility. The department has also released an online tool to determine eligibility, videos explaining paid leave eligibility and an infographic showing how much time an individual can take off work under different circumstances.

DOL’s WHD has continued to update its website to provide the latest news on benefits under FFCRA and can be accessed here.

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David Allen Co. of Raleigh, North Carolina, a member of ABC’s Carolinas and Central Florida chapters, has been awarded Accredited Quality Contractor status by ABC.

The AQC program recognizes and honors construction firms that document their commitment to excellence in five key areas of corporate responsibility: quality, safety, craft and management education, talent management and diversity and community relations.  A company that meets the criteria set forth in the program and has earned STEP Gold, Platinum or Diamond status in ABC’s safety management system is formally designated an Accredited Quality Contractor.    

Companies that achieve the AQC credential receive:

• Wide recognition within the industry and business community and with the public
• Authorization to use AQC language in bid documents
• Permission to use the AQC logo on letterhead, business cards and jobsite signs
• Access to AQC marketing materials such as hard hat stickers, membership plaques, etc.
• Recognition in FindContractors.com, ABC’s search tool to identify fellow ABC members by company name, chapter, CSI and NAICS codes and other designations
• Points on ABC National Excellence in Construction® award submissions
• Mention in the December issue of ABC’s magazine, Construction Executive
• Eligibility for ABC’s Top Performers lists

For more information, visit abc.org/aqc or contact aqc@abc.org. Applications will be accepted through October 30, 2020.

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What defines the best of the best? ABC’s Top Performers lists—the only rankings of their kind—recognize member contractors’ achievements in safety, quality, diversity, project excellence and special designations, ranked by work hours. You must achieve STEP Gold or higher and earn the Accredited Quality Contractor designation to qualify—applications are due by Oct. 30 for consideration in the rankings.

In addition, members should update their company profiles on FindContractors.com to ensure market segments and special designations are noted in the Top Performers rankings. Read on for more information on how to attain each of these qualifications. 

ABC’s STEP Safety Management System
Every ABC member wants to send its workers home safely every night. Take the first step towards achieving world-class safety by participating in STEP, whether you are beginning your safety journey or continuing to strengthen your performance. Top-performing STEP participants are 827% safer than the U.S. Bureau of Labor Statistics industry average. Getting started with STEP is free, and it can help you lower your workers compensation insurance rates. Visit abc.org/step or email stepapps@abc.org for more information.

ABC’s Accredited Quality Contractor Designation 
Is your company AQC material? AQC members demonstrate their commitment to financial fitness, world-class safety, workforce development, talent management, diversity and inclusion, the highest levels of quality construction and the betterment of the communities in which they work. If your company excels in these areas, you too can earn the AQC accreditation, which is recognized by the Construction Users Roundtable. For more information, visit abc.org/aqc or email Jake Reedy at reedy@abc.org.

FindContractors.com
Be sure your company profile is up to date in FindContractors.com to have your market segments and special designations listed in the Top Performers rankings. ABC’s member database features contact information for more than 13,000 contractors. Members can search for an ABC contractor, supplier or other construction professional by name, chapter, location, sales volume or type of construction. ABC populates member profiles with information on whether they have earned an Excellence in Construction® Award, National Safety Excellence Award, National Diversity Excellence Award, participate in the STEP safety management system and Accredited Quality Contractor programs, have special designations and have signed the Drug- and Alcohol-Free Workplace Pledge. Contact FindContractors@abc.org for a login if you don’t have one.
 
Visit abc.org/TopPerformers for the digital edition of the 2020 Top Performers lists or read the news release for more details.

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