Category: News Line

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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On Feb. 16, 24 state attorneys general filed a lawsuit against the U.S. Environmental Protection Agency and Army Corps of Engineers seeking to overturn the final rule published by the agencies on Jan. 18 that revises the definition of Waters of the United States.

The final rule, which defines the scope of waters subject to Clean Water Act regulation, repealed the Trump administration’s Navigable Waters Protection Rule and codified a definition that reflects the pre-2015 regulatory regime that the agencies are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 lawsuit seeks a preliminary injunction requesting the rule not be enforced while under litigation, stating, “If the Final Rule is left in place, then ranchers, farmers, miners, homebuilders, and other landowners across the country will struggle to undertake even the simplest of activities on their own property without fear of drawing the ire of the federal government.”

This suit follows a lawsuit filed on Jan. 18 by a number of affected industry groups. ABC will continue to be active in opposing this unnecessarily burdensome and costly regulation.

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On Feb. 15, the U.S. Department of Transportation’s Federal Highway Administration released its final rule establishing the National Electric Vehicle Infrastructure Formula Program.

The NEVI Formula Program will implement provisions of the Infrastructure Investment and Jobs Act, signed into law in 2021, that include $7.5 billion for electric vehicle charging stations (including $5 billion over five years to install EV chargers mostly along interstate highways). The intent of the program is to support the installation of 500,000 electric vehicle chargers across the country by 2030 as part of a domestic push to shift away from gas-powered vehicles.

The final rule contains a number of concerning labor provisions. It requires that all electricians working on electric vehicle supply equipment either be certified by the International Brotherhood of Electrical Workers’ Electric Vehicle Industry Training Program or be a graduate or recipient of a continuing education certificate from a government-registered apprenticeship program with a focus on EVSE installation approved by the U.S. Department of Labor in consultation with the DOT. Additionally, the proposed rule requires all NEVI-funded projects that require more than one electrician to use at least one GRAP-enrolled apprentice.

ABC previously submitted comments in response to the proposed rule and a request for information, urging the DOT to avoid union labor requirements and to instead welcome all qualified contractors to build EV chargers. Unfortunately, the agency disregarded these recommendations in the final rule.

The rule will now take effect 30 days after being published in the Federal Register.

The DOT also released its implementation plan for Buy America requirements on construction materials used for assembly of EV chargers funded by the NEVI Formula Program. These requirements will be waived until June 30, 2024.

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On Feb. 9, the Office of Management and Budget released a proposed rule to revise OMB’s Guidance for Grants and Agreements. This guidance defines the rules for federal agencies as they distribute funding through grant programs. The revisions would aid implementation of the Build America, Buy America Act provisions of the Infrastructure Investment and Jobs Act.

The IIJA requires the following expanded Buy America preferences and broadens the preferences to include nonferrous metals, such as copper used in electric wiring; plastic- and polymer-based products; glass, including optical fiber; and certain other construction materials, such as lumber and drywall:

• All iron and steel used in the project are produced in the United States. This means all manufacturing processes, from the initial melting stage through the application of coatings, occurred in the United States.
• All manufactured products used in the project are produced in the United States. This means the manufactured product was manufactured in the United States, and the cost of the components of the manufactured product that are mined, produced or manufactured in the United States is greater than 55% of the total cost of all components of the manufactured product, unless another standard for determining the minimum amount of domestic content of the manufactured product has been established under applicable law or regulation.
• All construction materials are manufactured in the United States. This means that all manufacturing processes for the construction material occurred in the United States.

The proposed rule codifies the rules outlined above and is intended to clarify several aspects of Buy America implementation:

• Defines “cost of components” as acquisition cost and transportation costs for components purchased by the contractor and all costs associated with the manufacture of the component, including transportation costs, for those manufactured by the contractor;
• Specifies manufacturing standards for various construction materials; and
• Defines “manufactured products” as products that “do not consist wholly or predominantly of iron or steel or both” and are not construction materials.

ABC previously commented on an OMB Request for Information and will again be participating in the regulatory process. Comments on the proposed rule are due by March 13, and may be submitted via regulations.gov.

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On Feb. 13, ABC submitted comments to the Federal Acquisition Regulatory Council regarding a proposed rule to amend the Federal Acquisition Regulation to require certain federal contractors to disclose their greenhouse gas emissions and set GHG emissions reduction targets.

ABC’s comments opposed the proposal’s overly burdensome, costly and punitive approach to regulating GHG emissions of federal contractors. While ABC understands the need for sensible environmental policies that balance the protection of the environment with the costs that compliance with these regulations requires, the comments outline how the proposed rule fails to strike that balance.

ABC also joined industry stakeholders in a coalition letter expressing similar concerns regarding the proposed rule.  

Under the proposed rule, federal contractors who qualify as significant contractors (those receiving between $7.5 million and $50 million in federal contracting obligations in the prior fiscal year) would be required to inventory their annual GHG emissions and disclose this information to the federal government.

Major contractors (receiving over $50 million in contracting obligations) would also be required to make publicly available CDP climate disclosures and set targets for reducing GHG emissions.

Contractors that fail to comply with these requirements would be deemed nonresponsible and ineligible for federal awards.

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Starbucks Case:

On Feb. 8, the ABC-led Coalition for a Democratic Workplace filed an amicus brief in a case against Starbucks that is currently before the National Labor Relations Board, condemning the NLRB general counsel Jennifer Abruzzo’s efforts to eliminate employer speech rights in union organizing drives as well as employees’ right to secret ballots in union representation elections. Read CDW’s statement.

Essentially, the general counsel’s proposal would eliminate employers’ free speech rights and limit their ability to communicate with their employees. This policy would violate the basic tenets of the National Labor Relations Act, U.S. Supreme Court and Board precedent, and congressional intent.

Additionally, the general counsel wants to force employers to accept signed authorization cards as proof of a union’s majority support and make it nearly impossible for an employer to reject the cards and request a secret ballot election supervised by the NLRB. The Supreme Court and courts of appeals have routinely rejected imposition of card check for its vulnerabilities to coercion, abuse and intimidation.

Tesla Case:

On Feb. 9, the CDW and four employer organizations filed an amicus brief before the U.S. Court of Appeals for the 5th Circuit in a case against Tesla over facially neutral dress code policies. CDW is calling on the 5th Circuit to reverse a 2022 decision by the Board in which the Democratic majority made nearly all facially neutral workplace dress code policies presumptively unlawful unless the employer could prove the policy was justified due to “special circumstances,” a narrow exception that the Board rarely, if ever, finds employers satisfy. The decision upended established precedent that had stood in place for nearly 80 years.

CDW stated, “The Board’s decision attacks common sense workplace dress code policies even though these policies have nothing to do with unions or union support. Workplaces throughout the economy use these policies to ensure worker safety, protect machinery or equipment, or simply create professional work environments. The Board’s decision will leave workplaces less safe for workers and consumers and put at risk the investments employers have made to further their businesses. The 5th Circuit should reverse this illogical decision and give employers the ability to enforce common sense dress code policies in the workplace.”

As explained in the brief, the decision “marks a dramatic shift in the legal landscape and places all such policies at risk of being found unlawful.” The decision disrupts the “longstanding balance that the Supreme Court sought to uphold,” and “employers across the nation will lose the ability to enforce commonsense and neutral workplace rules.” Read CDW’s statement.

Kristen Swearingen, ABC vice president of legislative & political affairs, chairs the CDW.

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On Feb. 9, the U.S. Department of Labor’s Wage and Hour Division issued Field Assistance Bulletin No. 2023-1, “Telework Under the Fair Labor Standards Act and Family and Medical Leave Act,” which provides guidance to WHD field staff on how to ensure teleworking employees are properly paid and protected under the FLSA and how to apply eligibility rules under the FMLA.

The WHD’s guidance states, “Employees can have the flexibility of work from home, telework, or work away from premises managed or controlled by the employer and also remain covered by the protections of the FLSA and the FMLA.”

The FAB, under the Telework and FLSA section, discusses short breaks of 20 minutes or less; meal breaks and off-duty time; and break time for pumping breast milk and privacy to pump. Also discussed, under Telework and FMLA, is employee eligibility and employee’s worksite.

In addition, WHD published opinion letter FMLA2023-1-A explaining that an eligible employee with a serious health condition that requires a reduced work schedule indefinitely may use available FMLA leave to limit their workday.

Visit the WHD website for more information on FAB No. 2023-1 and opinion letter FMLA2023-1-A.

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On Feb. 14, the U.S. Department of Labor’s Occupational Safety and Health Administration announced it will withdraw its proposal to reconsider and revoke final approval of Arizona’s state plan for occupational safety and health. As a result, the state’s plan will remain in place.

OSHA’s proposal was originally published on April 21, 2022, sighting Arizona’s nearly decade-long failures to adopt adequate maximum penalty levels, occupational safety and health standards, National Emphasis Programs and the COVID-19 Healthcare Emergency Temporary Standard.

On July 5, Arizona submitted a public comment to OSHA detailing its significant actions addressing OSHA’s concerns. These include adopting outstanding federal standards and directives, enacting state laws to ensure that Arizona’s future maximum and minimum penalty levels track with OSHA federal levels, and authorizing adoption of an emergency temporary standard when either OSHA or the Industrial Commission of Arizona determines that grave danger criteria are met.

Learn more about OSHA.

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The U.S. Department of Labor’s Wage and Hour Division recently announced a series of virtual compliance seminars to provide information on prevailing wage requirements for federally funded construction and service contracts. The seminars will include video trainings with corresponding virtual question and answer sessions.

Seminars on Davis-Bacon Act compliance will take place on the following dates:

• March 8
• June 27
• September 13

Seminars on Service Contract Act compliance are scheduled for the following dates:

• March 9
• June 28
• September 14

Registration via the DOL’s website is required to attend the seminars.

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On Jan. 4, the U.S. Department of Homeland Security issued a proposed rule that would increase certain immigration and naturalization benefit request fees charged by U.S. Citizenship and Immigration Services. ABC is working with the H-2B Coalition to highlight the burden this proposal will place on contractors and other businesses that rely on critical visa programs to support their workforce needs and file comments, which are due on March 6.

This new proposed rule would substantially increase fees to file H-2B petitions. The rule proposes to increase named H-2B application fees from $460 to $1,080 (a 135% increase) and unnamed application fees from $460 to $580 (a 26% increase). Further, USCIS is proposing a new asylum program fee of $600 to be paid by employers who file a Form I-129. Thus, under the proposed rule, the total cost to file a named H-2B application is $1,680 and unnamed is $1,180, a 265% and 157% increase, respectively, by DHS calculations. Finally, USCIS is proposing to limit the number of named beneficiaries per petition to 25, requiring multiple petitions for larger named petitions.

ACTION REQUESTED: If ABC member companies have specific examples of how this fee increase would affect their businesses, please email Peter Comstock at [email protected] or Karen Livingston at [email protected].

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