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Are you using fair, best-practice standard contracts to achieve better project results? Contracts from ABC business partner ConsensusDocs are written and supported by 40 prominent organizations that collectively represent more than 300,000 individuals and companies.
 
With a catalog of more than 100 industry-tested contracts, members have a lot to choose from to address specific needs. In addition to publishing comprehensive updates to the most-used agreements in 2017, the ConsensusDocs 305 Lean Construction Addendum and the ConsensusDocs 541 Design Assist Addendum—each a first-of-its-kind standard document—were published at the end of 2018. 

As an ABC member, you are eligible to receive the following benefits:

• A 20 percent discount off a ConsensusDocs subscription: Use the code ABC100 at consensusdocs.org to receive the discount, and a portion of your purchase will be shared with ABC.
• Free education on how to use contracts successfully in the construction business: From webinars to articles, an online resources section is always available. Or, subscribe to an informative bi-monthly newsletter by emailing support@consensusdocs.org.
• A seat at the table: As a member of the ConsensusDocs Coalition, ABC has a seat at the drafting table for all documents. Contact us if you would like to volunteer for one of the current or upcoming working groups.

Contact Nick Unhold at sales@consensusdocs.org or (703) 837-5336 with any questions. 

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In a Feb. 21 letter, ABC asked President Trump to eliminate an Obama administration executive order encouraging the use of government-mandated project labor agreements on large-scale federal construction projects because it “stands in the way of creating career paths into the construction industry for many merit shop craft professionals.”

ABC member companies annually invest an estimated $1.1 billion to build a construction workforce that is safe, skilled and productive using flexible, competency-based and market-driven education methodologies. This all-of-the-above approach to workforce development has produced a network of ABC chapter and affiliated training centers in 1,400 locations across the country that offer more than 800 apprenticeship, craft, safety and management education programs—including more than 300 U.S. Department of Labor Registered Apprenticeship programs for 20 different occupations—to build the people who build America.

However, according to the letter, government-mandated PLAs prevent participants in merit shop workforce development programs from obtaining high-paying jobs on taxpayer-funded projects and deny opportunities to the 87.2 percent of the U.S. construction industry workforce that chooses not to join a union.

ABC and industry groups have repeatedly asked President Trump to rescind President Obama’s Executive Order 13502, which allows state and local recipients of federal dollars to mandate PLAs and encourages federal agencies to require PLAs on federal contracts to build projects of $25 million or more on a case-by-case basis. ABC and the coalition have advocated to replace the Obama-era policy with Executive Orders 13202 and 13208, which would prohibit PLAs from being required on federal and federally assisted construction projects, respectively. Two dozen states have enacted fair and open competition legislation that welcomes all contractors to bid on construction projects.

Rescinding the pro-PLA Obama policy and implementing a new policy that welcomes all Americans to build taxpayer-funded construction projects “remains one of ABC’s top priorities, especially as previous and new Democrat governors and legislatures promote PLA mandates on federally assisted and state public works projects” across the country, according to the letter. “Cutting this costly regulation and creating a new win-win policy will protect taxpayers, spur economic growth, maintain robust construction industry career pipelines and allow all Americans to compete to rebuild America.”

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The Michigan Court of Claims has upheld a 2018 decision by the Michigan Legislature to repeal the state’s prevailing wage law, dismissing claims by Protecting Michigan Workers, the union-led group spearheading opposition to repeal in a decision announced on Monday, Feb. 25. Associated Builders and Contractors of Michigan led the 2018 coalition, Protecting Michigan Taxpayers, in the successful effort to peel back the 50-year old law that had been responsible for inflated construction costs across the state and a bevy of associated regulations and red tape. 

Repeal was achieved through a “public act,” with Protecting Michigan Taxpayers obtaining more than 350,000 signatures to mandate that the legislature vote up or down on the issue in both chambers, without the typical requirement for a signature by then-Gov. Rick Snyder (R)once passed.

Opponents to repeal attempted to make legal arguments based on unconstitutionality, claiming that the enactment of a $75,000 appropriation resulting from the repeal and the law’s immediate effectiveness rendered the repeal effort invalid. In her decision, Judge Cynthia Diane Stephens stated, “Plaintiffs’ position fails to appreciate that a valid appropriation can be made by way of a public act…This proposition is neither novel nor complicated, as the Legislature has made appropriations by way of public acts that were not compiled in the Michigan Compiled Laws for decades.”

The negative effects of prevailing wage on state coffers have been repeatedly proven in studies examining these state policies around the country, with evidence showing that prevailing wage can inflate construction costs up to 25 percent due to their anti-free market design. The state of Ohio showed through an official state-sponsored study that they enjoyed almost $500 million in savings following the state’s repeal of prevailing wage on school construction. In addition to these cost increases, the multitude of regulations around things like employee classification, the burden of unnecessary paperwork, and time-consuming reporting requirements, severely impact the ability for small businesses to bid on taxpayer-funded construction projects.

With this ruling, Michigan further secures its status as the 24th state without prevailing wage policies. The Michigan Court of Claims did the right thing by Michigan taxpayers, ensuring they will receive the best return on their investment and get the best construction product at the best possible price.

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From Feb. 24 to March 31, ABC members are encouraged to participate in the third annual National Ladder Safety Month to raise awareness of ladder safety and decrease the number of ladder-related injuries and fatalities.

Presented by the American Ladder Institute, a nonprofit organization that sets safety standards for the U.S. ladder industry, National Ladder Safety Month will focus on the following safety areas throughout March:

– Feb. 24 – March 2: What is Ladder Safety?
– March 3 – 9: Ladder Safety Training and Year-Round Partners
– March 10 – 16: Ladder Safety at Work
– March 17 – 23: Ladder Safety at Home
– March 24 – 30: Ladder Inspection and Disposal

ALI offers safety training resources, which include videos, flyers, infographics and a marketing guide to raise awareness of the initiative.

Additionally, the U.S. Department of Labor’s Occupational Safety and Health Administration has a collection of events, training guides and other resources to prevent falls in the workplace.

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OSHA’s Tracking of Workplace Injuries and Illnesses final rule requires certain establishments to electronically submit information from their OSHA Form 300A for calendar year 2018 by March 2.
 
Who is required to submit their 2018 OSHA Form 300A electronically?

• Establishments with 250 or more employees at any time during the previous calendar year 
• Establishments with 20-249 employees in certain high-risk industries (outlined here) 
 
If employers in State Plan states have questions about their obligation to submit injury and illness information, they should contact their State Plan office.
 
Information on how to electronically submit the OSHA Form 300A can be found on OSHA’s Injury Tracking Application website. 

Background:

On Jan. 25, 2019, OSHA issued the Tracking of Workplace Injuries and Illnesses final rule, which revised the Obama administration’s 2016 final rule. The 2019 final rule eliminates the requirement for establishments with 250 or more employees to electronically submit information from OSHA Form 300 (Log of Work-Related Injuries and Illnesses) and OSHA Form 301 (Injury and Illness Incident Report) to OSHA annually. According to the press release, “the final rule does not alter an employer’s duty to maintain OSHA Forms 300 and 301 on site, and OSHA will continue to obtain these forms as needed through inspections and enforcement actions.” 

Under the final rule, covered establishments are only required to electronically submit information from OSHA Form 300A (Summary of Work-Related Injuries and Illnesses) to OSHA. Information on how to electronically submit the OSHA Form 300A can be found on OSHA’s Injury Tracking Application website. 

The final rule also requires covered employers to submit their Employer Identification Number electronically along with their OSHA Form 300A submission. According to the final rule, the EIN will be required for covered establishments submitting their 300A data from 2019, but not for covered establishments submitting their 300A data from 2018, which is due by March 2, 2019. 

Although the Trump administration rulemaking did not focus on employee drug testing and incident-based incentive programs included in the Obama-era 2016 rule, the final rule did mention an Oct. 11, 2018 OSHA memo that explained its position on workplace incentive programs and post-incident drug testing. The rule states:

That memorandum—which referred to the 2016 final rule and its preamble—reiterated the rule’s limited scope and expressed how it “does not prohibit workplace safety incentive programs or post-incident drug testing.” To the extent the 2016 preamble suggested otherwise, it has been superseded. While not the focus of this particular rulemaking, that memorandum accurately reflects OSHA’s position and addresses the commenters’ concerns.

More information on the 2019 final rule is available here. 

This article is intended for informational purposes only and does not constitute legal advice or opinion.

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ABC is offering the webinar “Preventing and Correcting Workplace Harassment” on March 4 at 2 p.m. EST. 

ABC’s general counsel, Littler Mendelson P.C., will lead the webinar and help management understand and identify unlawful harassment as well as discuss the steps management should take both before and after a complaint.  

ABC members can register here.

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On Feb. 13, the U.S. Department of Transportation’s Federal Aviation Administration issued a notice of proposed rulemaking to allow the operation of small unmanned aircraft systems, or drones, at night and over people under certain conditions without obtaining a waiver. If finalized, the proposal would amend the FAA’s 2016 final rule, which set standards for operation and operator certification for non-recreational use of drones weighing less than 55 pounds. 

According to the FAA, the proposal aims to further integrate drones safely into the national airspace system and attempts to balance the need to mitigate safety risks without inhibiting technological and operational advances. The amendments would allow expanded drone operations and reduce the knowledge testing burden on remote pilot in command certificate holders. The 2019 proposal addresses some of the concerns ABC expressed in its 2015 comments regarding the FAA proposed rule on drones.  

FAA is soliciting public feedback on the proposed rule. The deadline for submitting comments is April 15, 2019.  

More information on FAA’s recent drone initiatives can be found on its website. 

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On Feb. 13, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs announced a new policy directive to establish a voluntary compliance program for high-performing federal contractors. The Voluntary Enterprise-wide Review Program provides contractors with an alternative to OFCCP’s establishment-based compliance evaluations and instead focuses on recognizing contractors that demonstrate comprehensive corporate-wide compliance and model diversity and inclusion programs.

In a press release, OFCCP Director Craig Leen explained that the VERP program provides meaningful incentives for federal contractor participants and recognizes those that excel in their corporate-wide compliance with OFCCP’s requirements. Additionally, the program will provide a path for companies who are close to excellence but want individualized compliance assistance from OFCCP to reach the top level.

The press release also stated that the OFCCP expects to begin accepting VERP applications in the fall. 

ABC will continue to provide updates on the VERP program in Newsline as more information becomes available. For the latest on the OFCCP, visit its website. 

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On Feb. 7, the Occupational Safety and Health Administration issued a temporary enforcement policy for the crane operator evaluation requirements in the 2018 Cranes and Derricks in Construction: Operator Qualification final rule. The evaluation and documentation requirements became effective on Feb. 7, 2019.

According to a memo from Acting Director of the Directorate of Construction Scott Ketcham, OSHA is fully enforcing the requirement that employers must evaluate their operators before allowing them to operate cranes independently. OSHA stated, however, that it has received feedback from the construction industry indicating some employers may need more time to document evaluations of crane operators prior to the effective date. 

Therefore, OSHA states:

During the first 60 days of enforcement (until April 15, 2019), OSHA will evaluate good faith efforts taken by employers in their attempt to meet the new documentation requirements for operators of cranes used in construction. During this period, OSHA intends to offer compliance assistance, in lieu of enforcement, for those employers who have evaluated operators in accord with the final rule and are making good faith efforts to comply with the new documentation requirement. If, upon inspection, it is determined that an employer has failed to make sufficient efforts to comply, OSHA should cite for that deficiency.

The temporary enforcement policy memo also states that beginning April 15, 2019, OSHA will fully enforce all applicable provisions of the final rule.

For more information on OSHA’s cranes and derricks in construction standard, see OSHA’s website.

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Sheldon Shapiro, chief executive officer of Shapiro & Duncan, passed away on Feb. 7. Shapiro served on ABC’s board of directors from 1999 to 2003 and on the board of trustees for ABC CraftMasters Training Trust from 2007 to 2009. He was instrumental in providing support and materials for the buildout of the ABC CraftMasters Training Academy and was responsible for putting hundreds of Shapiro & Duncan employees through apprenticeship training with ABC and other local industry organizations. 

Services honoring Shapiro will be held at the Theatre Arts Arena at Montgomery College, 51 Mannakee Street, Rockville, Maryland, on Feb. 10. In lieu of flowers, contributions may be made to the Sheldon Shapiro Charitable Foundation Inc., c/o Shapiro and Duncan Inc., 14620 Rothgeb Drive, Rockville, Maryland, 20850.

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