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The U.S. District Court for the Southern District of Texas issued a ruling on March 19 blocking the U.S. Environmental Protection Agency and Army Corps of Engineers from enforcing a final rule published by the agencies on Jan. 18 that revises the definition of Waters of the United States, but only in the states of Texas and Idaho. The ruling, the result of a lawsuit led by the Texas and Idaho attorneys general, separately rejected a request to block enforcement nationwide.

The final rule, which defines the scope of waters subject to Clean Water Act regulation, repealed the Trump administration’s Navigable Waters Protection Rule, which ABC supported, and codified a definition that reflects the pre-2015 regulatory regime that the agencies are currently implementing. ABC joined a coalition opposing the rule, submitting comments outlining how it fails to provide unambiguous water quality protections that provide clarity for contractors seeking to safeguard the environment and comply with federal regulations.

The final rule took effect on March 20 outside of Texas and Idaho. Multiple other lawsuits against the final rule, including one led by 24 additional state attorneys general, are ongoing and may lead to further preliminary injunctions blocking enforcement of the WOTUS rule.

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On March 14, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs announced the launch of a new Mega Construction Contract Program.

Under the new initiative, certain construction projects valued at $35 million or more, receiving partial or full federal funding and lasting more than one year will be designated “megaprojects.”

The OFCCP will provide ongoing compliance assistance to contractors and subcontractors on these megaprojects to improve recruitment, hiring and fair employment practices. The OFCCP will also conduct compliance reviews to evaluate contractors’ anti-discrimination and equal opportunity practices.

The OFCCP has provided a list of designated megaprojects. Currently, all designated projects fall under the General Services Administration and U.S. Department of Transportation. The OFCCP has stated its intent to designate megaprojects under additional federal agencies including the U.S. Departments of Commerce and Energy and U.S. Environmental Protection Agency in the future.

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ABC recently launched the IRA webpage to assist contractors and developers performing private clean energy projects under the Inflation Reduction Act.

The webpage features a collection of ABC and government guidance and resources to help member contractors maximize the potential opportunities presented by the IRA while navigating the unique difficulties posed by its expansion of prevailing wage and government-registered apprenticeship program requirements.

Members are also encouraged to log into the ABC Academy for Construction Ethics, Compliance & Best Practices to view two webinars providing additional insights on the IRA’s mandates:

• Insights on New Treasury Guidance for Apprenticeship and Davis-Bacon Mandates on Private Clean Energy Projects—presented on Dec. 12, 2022
• More Insights on the Inflation Reduction Act’s Apprenticeship and Davis-Bacon Mandates on Private Clean Energy Projects—presented on March 1, 2023

Signed into law on Aug. 16, 2022, the IRA was provides over $270 billion in tax credits for the construction of solar, wind, hydrogen, carbon sequestration, electric vehicle charging stations and other clean energy projects.

Explore ABC’s IRA webpage today at abc.org/ira.

If you have additional questions regarding the IRA, please contact [email protected].

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On March 6, the Federal Trade Commission announced that it is extending the comment period for its proposed rulemaking on banning noncompete agreements, from March 20 to April 19. ABC will be commenting in opposition to the proposed rule, which is overly restrictive on well-established and reasonable business practices in the construction industry. The public can submit comments at regulations.gov.  

On Jan. 31, 100 organizations, including ABC, signed a letter urging the FTC to extend the comment period for its proposed rulemaking on banning noncompete agreements for an additional 60 days. The groups argued that the regulated community should be given sufficient time to assess the potential consequences of the rulemaking and develop insightful comments for the FTC to consider. 

In addition, on Feb. 28, ABC joined 260 organizations in writing to Congress, urging lawmakers to exercise their oversight and appropriations authority to rein in FTC’s unauthorized rulemaking banning noncompete agreements. The FTC lacks the constitutional or statutory authority to issue such a rule and, in attempting to do so, the agency is improperly usurping the role of Congress.

Background:

On Jan. 5, the FTC issued a proposed rule that would ban all noncompete agreements with limited exceptions. According to the FTC, the proposed rule would make it illegal for an employer to:

• Enter into or attempt to enter into a noncompete with a worker;
• Maintain a noncompete with a worker; or
• Represent to a worker, under certain circumstances, that the worker is subject to a noncompete.

On Feb. 2, ABC hosted a webinar to highlight how the proposed rule will affect members and why the FTC’s action is constitutionally suspect and open to a strong legal challenge.  

On Feb. 16, the FTC  hosted a public forum examining the FTC’s proposed rule to prohibit employers from imposing noncompetes on their workers. The FTC heard from a series of speakers who have been subjected to noncompete restrictions, as well as business owners who have experience with noncompetes.

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ABC members have sent nearly 3,700 messages to Congress through the ABC Action app in support of the Fair and Open Competition Act (H.R. 1209/S. 537), which was reintroduced in the 118th Congress by Sen. Todd Young, R-Ind., and Rep. James Comer, R-Ky., on Feb. 28. Urge your members of Congress to support this ABC priority legislation.

ABC members and the nearly 7 million U.S. construction industry workers who choose not to join a labor union deserve a fair chance to rebuild America at a price that is right for taxpayers. The FOCA bill is key to ensuring that ABC contractors are able to compete to build America’s infrastructure on a level playing field that encourages competition from all qualified companies, without project labor agreement mandates. FOCA would also foster competition from small, minority- and women-owned federal contractors and their diverse workforces, which are disproportionately harmed by PLA mandates.

Government-mandated PLAs effectively cause many nonunion construction workers to experience wage theft, as workers lose an estimated 34% of wages and benefits earned on a PLA project unless they accept unwanted union representation, join a specific union, pay membership dues and meet the union benefits plans’ vesting requirements.

On Feb. 7, an ABC-led coalition of 22 construction industry and business associations sent a letter to Congress in support of the bill, urging them to immediately pass this commonsense legislation.

https://www.abc.org/Politics-Policy/Grassroots/ABC-Action-App/Action-Center?vvsrc=%2fCampaigns%2f100816%2fRespond

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Safety training, education and professional development are all critical to a top-performing company. These investments can powerfully shape culture, reinforce expectations, provide valuable feedback and equip the workforce to meet or exceed expectations.

Selecting Effective Goals

Traditionally, safety training was measured by whether it resulted in the desired behavioral change. The training process may have been implemented by just reading rules, watching the same old video or running through modules online. Sometimes, it seemed the goal was simply completion of the training rather than engaged learning for understanding. Ineffective goals for health and safety training lead to a culture where people adhere to expectations only when certain people are watching. This destroys the creditability of the safety culture and creates an underperforming system based on luck. 

What does it take to be engaging? Be intentional about identifying training needs and making the training meaningful to the workforce. In contrast, providing heat stress training in the middle of a cold winter is not going to be engaging and will erode safety culture. To be effective, supervisors need additional training, not just on procedures and management policies, but professional development as well. The more highly trained the supervisor, the more effective they will be in their role. Now more than ever, the supervisor also needs to be a resilient leader to advance the program.

Choosing the Right Methods

The maturity of a company’s health and safety program and journey will determine the method used to train and educate. For a company with a mature program, the training might feel more like a discussion group. But for one just beginning the journey, or for a company with many new employees, health and safety training need structure and formality to ensure the clarity of the message.

When people are engaged and equipped in a way that is meaningful to them, they will choose to work safely because they want to. And they will continue to do so if they are supported with proper planning and resources. This creates a strong and effective health and safety culture.

Looking for help enhancing your safety program?

Discover resources available through ABC’s STEP Safety Management System and other health and safety topics at abc.org/safety.

For more information or assistance, please reach out to Joe Xavier or Aaron Braun.

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On Feb. 28, congressional Democrats reintroduced the ABC-opposed Protecting the Right to Organize Act (HR 20) in the 118th Congress. The bill is a wish list of radical labor policies that would infringe on workers and employers’ rights, diminish opportunities for entrepreneurs and small business owners and devastate the economy. The ABC-led Coalition for a Democratic Workplace is leading opposition to the bill.

“The PRO Act is a naked attempt to increase union membership at the expense of employees’ rights to privacy and association, employers’ constitutional right to free speech and opportunities for small businesses,” said Kristen Swearingen, ABC vice president of legislative & political affairs and chair of CDW, in a statement. “We are disappointed members of Congress are willing to cater to union demands for legislation that clearly threatens the livelihoods of small business owners and is an open attack on the franchise and self-employment business models that have fueled innovation, entrepreneurship and job creation.

The CDW will be sending a letter to all members of Congress urging them to oppose the legislation.

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On Feb. 27, ABC, along with members of the Waters Advocacy Coalition, penned a letter to the U.S. House of Representatives Transportation and Infrastructure Committee supporting H.J. Res 27, the Congressional Review Act disapproval of the Environmental Protection Agency and Army Corps of Engineers’ 2023 revised Waters of the United States final rule.

The revised regulation overrules state regulatory authority, diminishes productivity and increases cost of development, taking away good quality jobs and upending the ability of the construction industry to build in communities across the country.

H.J Res 27, introduced by the committee chairman, Rep. Sam Graves, R-Mo., and the Water Resources and Environment Subcommittee chairman, Rep. David Rouzer, R-N.C., was passed out of committee on Feb. 28 and has 147 co-sponsors in the House. An identical measure was introduced in the U.S. Senate by Environment and Public Works Committee ranking member Sen. Shelly Moore Capito, R-W.V., with 49 co-sponsors.

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A Notice of Funding Opportunity for the U.S. Department of Transportation’s fiscal year 2023 Rebuilding American Infrastructure with Sustainability and Equity grant program is set to close for applications on Feb. 28.

The RAISE grant program provides federal assistance to state and local government entities for the purpose of major surface transportation infrastructure projects. At least $2.275 billion in funding appropriated by the Infrastructure Investment and Jobs Act and other funding sources is available.

However, the impact of this funding may be undermined by language in the NOFO that attempts to steer these funds toward applicants that require project labor agreements on their projects. The NOFO includes specific language indicating that PLAs will increase applicants’ scores for “Partnership and Collaboration,” improving their chance of receiving RAISE funds.

ABC has consistently and vigorously opposed government-mandated PLAs and PLA preferences on federal government and federally assisted construction projects, as well as state and local government infrastructure projects. PLAs needlessly increase costs, chill competition and steer hundreds of billions of dollars’ worth of construction projects funded by taxpayers to well-connected special interests, i.e., construction unions and contractors signatory to specific construction unions party to a PLA.

Despite this, ABC has identified a significant number of Biden administration federal agency grants similar to the RAISE program––totaling more than $100 billion for infrastructure projects procured by state and local governments––subject to language and policies promoting PLA mandates and preferences that will increase costs and reduce competition on federally assisted construction projects. ABC will soon be launching a revamped website to effectively communicate the scope of projects impacted by these preferences.

For any questions or comments regarding PLA preferences in federal funding, please contact Michael Altman at [email protected].

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