Category: News Line

On June 30, ABC submitted comments on the U.S. Department of Labor’s Occupational Safety and Health Administration’s proposed amendments to its occupational injury and illness recordkeeping regulation and urged the agency to withdraw the harmful rule.

“ABC is disappointed that the Biden administration is moving forward with a new rule to undo the ABC-supported provisions of the 2019 final rule under the Trump administration and reprise the 2016 Obama-era rule,” ABC wrote to OSHA.

“Similar to the 2016 final rule, which ABC objected to, the Biden administration proposed rule does nothing to achieve OSHA’s stated goal of reducing injuries and illnesses. Instead, the proposal will force employers to disclose sensitive information to the public that can easily be manipulated, mischaracterized and misused for reasons wholly unrelated to safety, as well as subject employers to illegitimate attacks and employees to violations of their privacy,” ABC said.

In addition, ABC submitted comments to OSHA as a steering committee member of the Coalition for Workplace Safety. In the comments, ABC and 61 organizations expressed deep concerns with the agency’s attempt to require electronic submission of employer summary data and individual employee injury and illness data. 

The proposed rule would require establishments with 100 or more employees in certain designated industries to electronically submit information from their OSHA Forms 300, 301 and 300A to OSHA once a year. Establishments with 20 or more employees in certain industries would continue to be required to electronically submit information from their OSHA Form 300A annual summary to OSHA once a year.

OSHA intends to post the data from the proposed annual electronic submission requirement on a public website. The DOL indicates it will remove injury and illness information that reasonably identifies individuals directly, such as individuals’ names and contact information, and share the information on a public website. However, ABC has serious concerns because of the confidential business details included in the form and the high risk of disclosure.

OSHA’s electronic injury reporting rule was first issued during the Obama era, and ABC filed a lawsuit against it. In 2019, the Trump-era DOL issued the Tracking of Workplace Injuries and Illnesses Final Rule, which amended the Obama-era final rule and eliminated 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. Under the 2019 final rule, covered establishments are only required to electronically submit information from OSHA Form 300A (Summary of Work-Related Injuries and Illnesses) to OSHA.

Learn more about OSHA’s Injury and Illness Recordkeeping and Reporting Requirements.

Powered by WPeMatico

On June 21, the Biden administration released its Spring 2022 Unified Agenda of Regulatory and Deregulatory Actions. The agenda lists upcoming rulemakings and other regulatory actions from each agency that the administration expects to publish this year and into 2023. ABC has prepared a summary of the actions of interest to ABC members by agency. 

U.S. Department of Labor

Occupational Safety and Health Administration

On March 30, 2022, OSHA issued a proposed rule to restore provisions of the Obama administration’s 2016 Improve Tracking of Workplace Injuries and Illnesses final rule. Under the new proposal, covered establishments with 100 or more employees in certain high-hazard industries—including construction—will be required to electronically submit information from their OSHA Forms 300, 301 and 300A to OSHA once a year. In addition, the U.S. Department of Labor plans to share the information on a public website (although indicating it will remove individuals’ names and contact information). ABC plans to submit comments opposing the proposal by the deadline of June 30. According to the regulatory agenda, OSHA intends to issue a final rule in December 2022.

On Oct. 27, 2021, OSHA issued an advance notice of proposed rulemaking on heat injury and illness prevention in indoor and outdoor settings, which began the process to consider a heat-specific workplace rule. On Jan. 26, 2022, ABC, as a steering committee member of the Construction Industry Safety Coalition, submitted comments on the ANPRM. CISC members feel strongly that a regulatory approach—if adopted—must be simple and should integrate the key concepts of “water, rest, shade.” According to the regulatory agenda, the agency intends to analyze the comments from the ANPRM beginning in June 2022.  

On May 17, 2022, ABC, as a steering committee member of the Construction Industry Safety Coalition, submitted comments to OSHA voicing compliance and cost concerns on the proposed rule on powered industrial trucks design standard update. According to the regulatory agenda, OSHA intends to analyze the comments from the NPRM beginning in July 2022.

The agency is expected to issue a proposed rule clarifying the requirements for the fit of personal protective equipment in construction in September 2022.

In May 2023, OSHA intends to issue a proposed rule on infectious diseases and examine regulatory alternatives for control measures to protect employees from infectious disease exposures to pathogens that can cause significant disease. The agency listed several workplaces where these control measures might be necessary, including health care, emergency response, correctional facilities, homeless shelters, drug treatment programs and other occupational settings where employees can be at increased risk of exposure.

Wage and Hour Division

In December 2022, the DOL’s Wage and Hour Division is expected to issue a final rule “purporting” to update and modernize the regulations implementing the Davis-Bacon Act and Related Acts. On May 17, ABC filed nearly 70 pages of comments opposing the proposed rule, which would reverse prior reforms, expand Davis-Bacon requirements to new industries and activities and increase administrative burdens on federal contractors. ABC also surveyed contractor members to gather insight on the potentially harmful impacts of this proposal and utilized the data gathered in its comments.

In October 2022, the WHD is expected to issue a proposed rule updating the “overtime” rule. WHD is reviewing the regulations that implement the exemption of bona fide executive, administrative and professional employees from the Fair Labor Standards Act’s minimum wage and overtime requirements. On May 11, ABC, as a steering committee member of the Partnership to Protect Workplace Opportunity, as well as 92 other organizations, sent a letter to Secretary of Labor Marty Walsh urging him to abandon or at least postpone issuing the announced proposed rulemaking.

For more information on upcoming DOL rulemakings, see the department’s Spring 2022 Regulatory Agenda.

Federal Acquisition Regulation Council

The FAR is expected to issue a proposed rule by the end of June 2022, with a public comment deadline of August 2022, to implement Executive Order 14063. ABC slammed the EO, which directs the FAR Council to mandate the use of project labor agreements on large-scale construction projects with a total estimated value of $35 million or more. On April 6, ABC sent the White House a letter with more than 1,200 signatures from member companies and chapters strongly opposing the EO and other efforts by the Biden administration to push PLAs on federally assisted projects. ABC is currently evaluating legal options to challenge the EO policy and individual PLAs on federal construction contracts.

National Labor Relations Board

The NLRB intends to “engage in rulemaking on the standard for determining whether two employers, as defined in Section 2(2) of the National Labor Relations Act, are a joint employer under the Act” and issue the proposal in July 2022. It is expected the board will amend or rescind the 2020 ABC-supported, NLRB-issued joint employer final rule, which reinstates the traditional joint-employer standard and provides clear criteria for companies to apply when determining joint-employer status.

The board will also be “revising the representation election procedures located at 29 CFR part 103, with a focus on the amendments issued on April 1, 2020” and is expected to issue a proposed rule in Sept. 2022. On April 1, 2020, the Trump NLRB issued the final election protection rule, which amends the board’s rules and regulations on blocking charges, the voluntary recognition bar and the proof of majority support specific to the construction industry. In Jan. 2020, ABC submitted comments in support of the board’s proposal.

Additional Rules to Monitor Include:

Environmental Protection Agency

Council on Environmental Quality

More information on these and other rulemakings can be found in the Spring 2022 Regulatory Agenda. ABC will continue to provide updates on these and other rulemakings in Newsline.

Powered by WPeMatico

On June 15, the U.S. Department of Labor’s Wage and Hour Division published a notice of a proposed revision to the Information Collection Request titled, “Report of Construction Contractor’s Wage Rates.” This ICR governs the WD-10 form used in wage surveys to determine the prevailing wage rate under Davis-Bacon and Related Acts requirements. The WHD’s stated goal of the revision is to streamline the wage survey process and increase response rates.

Under the 1931 Davis-Bacon Act and related regulations, contractors and subcontractors on federal and federally funded construction contracts must pay at least the locally prevailing wage and benefit rate, as determined by the WHD, to construction workers. To determine these rates, WHD distributes WD-10 forms to construction employers in a given locality. Under current rules, if at least 50% of workers in a classification are paid the same rate, it is designated as the “prevailing wage.” If no wage prevails, an average rate is calculated.

The proposed changes, as seen in the proposed revised WD-10 form and new WD-10A form, include the following:

• Respondents are no longer asked to determine a peak week of construction, identify project value or identify contractors or subcontractors;
• Respondents will select labor classifications from a provided list instead of manually entering the classification; and
• Will add a new WD-10A pre-survey form used to identify potential respondents.

ABC has repeatedly criticized the WHD’s process for determining prevailing wages as statistically inaccurate and biased toward union wage rates, including in May 17 comments responding to the WHD’s recently proposed sweeping changes to Davis-Bacon and Related Acts regulations that exacerbate ABC’s longstanding concerns with this archaic policy.

Comments on the proposed revisions to the WD-10 form are due by Aug. 15, and may be submitted with the identifying Control Number 1235-0015 via email to [email protected]. ABC will be analyzing the proposal and submitting comments to WHD. Please reach out to Michael Altman if you have comments, questions or need help responding to the ICR.

Powered by WPeMatico

The U.S. Department of Labor’s Wage and Hour Division will host sessions for its third annual virtual Prevailing Wage Seminar on Tuesday, September 13, from 1:30-3:30 p.m. ET, which will include a question-and-answer session focused on Davis-Bacon topics. Registration for the sessions is now open on the WHD’s website.

The 1931 Davis-Bacon Act and related regulations require contractors and subcontractors that perform work on federal and federally funded construction projects to pay a government-determined prevailing wage and benefit rate on an hourly basis to on-site construction workers. The DOL estimates the Davis-Bacon Act and 71 active related acts collectively apply to approximately $217 billion in federal and federally assisted construction spending per year and provide government-determined wage rates for an estimated 1.2 million U.S. construction workers.

The WHD is currently working on finalizing a proposed rule that would make over 50 significant changes to Davis-Bacon prevailing wage regulations.

On May 17, ABC filed nearly 70 pages of comments opposing the proposed rule, which would reverse prior reforms, expand Davis-Bacon requirements to new industries and activities and increase administrative burdens on federal contractors.

ABC also surveyed contractor members to gather insight on the potentially harmful impacts of this proposal and utilized the data gathered in its comments.

Continue to monitor Newsline for additional information on the rulemaking.

Powered by WPeMatico

On June 16, House Committee on Oversight and Reform Ranking Member James Comer, Ky., and 12 other House Republicans sent a letter to the Office of Management and Budget raising concerns about the implementation of President Biden’s Executive Order 14063, “Use of Project Labor Agreements for Federal Construction Projects,” highlighting concerns that the proposal will raise taxpayer costs, cut nonunion workers out of federal projects and force right-to-work states to freeze local workers out of cooperative federal projects. The executive order mandates PLAs on federal construction projects of $35 million or more.

“As America emerges from the COVID-19 pandemic and confronts surging inflation, this is exactly the wrong policy to pursue—harming workers, punishing local economies and states, and increasing already out-of-control federal spending,” he wrote. “It should come as no surprise, therefore, that Congress did not include PLA requirements in the American Rescue Plan Act of 2021, the Infrastructure Investments and Jobs Act, and other recent infrastructure legislation. Eighty-seven percent of the U.S. construction workforce does not belong to a union. 

OMB’s Federal Acquisition Regulatory Council is charged with developing a proposed rule to implement Executive Order 14063, which is currently under review at OMB’s Office of Information and Regulatory Affairs. The President’s push for PLA requirements threatens to shut the vast majority of construction workers out of the employment opportunities Congress intended this legislation to provide. The danger is especially acute in right-to-work states, where the President’s order threatens to eliminate local workers entirely from work on the affected projects.”

Comer requested that OMB officials provide a briefing responding to the committee’s concerns on the proposed rule and its lawfulness. The letter was signed by 12 other Republican committee members: Jody Hice, Ga., Glenn Grothman, Wisc., Michael Cloud, Texas, Ralph Norman, S.C., Nancy Mace, S.C., Virginia Foxx, N.C., Bob Gibbs, Ohio, Fred Keller, Pa., Andy Biggs, Ariz., Andrew Clyde, Ga., Scott Franklin, Fla., and Jake LaTurner, Kans.

The House Committee on Oversight and Reform has jurisdiction over the ABC-supported Fair and Open Competition Act (H.R. 1284).

ABC blasted the Biden administration’s Feb. 4, 2022, pro-PLA EO, calling it anti-competitive for small businesses and costly for taxpayers.

On Feb. 15, ABC and 15 organizations representing tens of thousands of companies and millions of employees in the construction industry sent a letter to President Biden outlining concerns with the EO.

On Feb. 28, ABC and a coalition of 19 organizations from the construction industry and the business community sent a letter to Congress in support of the Fair and Open Competition Act (S. 403/H.R. 1284), which would restrict government-mandated PLAs on federal and federally assisted construction projects.

On March 7, Sen. Todd Young, R-Ind., led a group of 42 Senate Republicans in sending a letter to President Biden opposing the EO, saying that “a fair and open bidding process for federal construction projects would guarantee the best value for hardworking taxpayers located in all geographies and regions across the United States.”

On March 8, Rep. Ted Budd, R-N.C., and 59 House members signed a letter to President Biden saying that PLA mandates and preferences will “deny critical construction jobs to local workers and small businesses,” urging the White House to refrain from “attaching strings to infrastructure funding that create discriminatory barriers to recovery.”

On April 6, ABC sent a letter to the White House with more than 1,200 signatures from members and chapters voicing strong opposition to President Biden’s PLA EO. The letter also lays out concerns with other federal agency policies promoting PLAs on federally assisted construction projects, which would affect the allocation of funds under the $1.2 trillion bipartisan infrastructure package that was signed into law last year, as well as other laws providing funds for state and local governments to improve its infrastructure.

On April 26, almost 20 Republican Governors sent a letter to the Biden administration asking for the  “Office of Management and Budget–along with respective federal agencies charged with implementation, grant programs, draft regulations and guidance related to legislation funding infrastructure projects––afford states and localities maximum regulatory flexibility free from anti-competitive and costly pro-PLA policies.”

On April 27, ABC sent a letter to a congressional transportation and infrastructure subcommittee warning of the negative impacts of imposing government-mandated PLAs on infrastructure spending.

Visit the construction industry coalition website BuildAmericaLocal.com and this ABC FAQ document to learn more

Powered by WPeMatico

Comments are closed for this post, but if you have spotted an error or have additional info that you think should be in this post, feel free to contact us.

Powered by WPeMatico

More than 500 ABC members and chapter staff are in Washington, D.C., for ABC’s 2022 Legislative Week, meeting with leaders on Capitol Hill to advocate for fair and open competition and fight the Protecting the Right to Organize Act, project labor agreement mandates and burdensome regulations. Highlights of the fly-in included keynotes from Rep. Steve Scalise, R- La., House minority whip, and Sen. Todd Young, R-Ind., who spoke in favor of free markets and condemned the Biden administration’s regulatory overreach and the PRO Act.

Gov. Glenn Youngkin, R-Va., Gov. Bill Lee, R-Tenn., and Wisconsin gubernatorial candidate Rebecca Kleefisch addressed attendees via video messages. “As job creators, small and large business owners and leaders, thank you for all you do to build America,” said Gov. Youngkin. “The construction industry is the cornerstone of the American economy. The strength and future success of America will be secure if we hold to the spirit and ideals your organization promotes. I applaud ABC and its members for your commitment to fair and open competition.”

Attendees also received briefings on the current political landscape, the 2022 election cycle and ABC’s political advocacy efforts, in addition to rallying around the principles of the merit shop at the Free Enterprise Alliance reception.

The annual event kicked off on Monday, June 13, with ABC’s Inclusion, Diversity and Equity Summit, where ABC chapters and members spoke about their challenges and successes building a diverse, inclusive workforce. Featured speakers were Rick C. Wade, vice president of strategic alliances and outreach at the U.S. Chamber of Commerce, who discussed the Infrastructure Investment and Jobs Act and the opportunities it can provide for diverse contractors; Pastor Corey B. Brooks, founder and CEO of Project H.O.O.D. Communities, who spoke about his efforts to inspire a new generation of diverse builders and transform his community; and ABC Chief Economist Anirban Basu, who explained how inclusion, diversity and equity can foster economic growth.

Don’t miss briefings on legal and regulatory developments for merit shop contractors and attorneys on Thursday, June 23, at the ABC Virtual Legal Conference. Learn more about this event at legalconference.abc.org.

Powered by WPeMatico

The Biden administration has pledged 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. On June 9, the Federal Highway Administration announced a proposed rule for the National Electric Vehicle Infrastructure Formula Program that requires contractors to use government-registered apprentices and the controversial union-backed Electric Vehicle Industry Training Program.

The Infrastructure Investment and Jobs Act, signed into law in 2021, includes $7.5 billion for EV charging stations to aid in that effort, which includes $5 billion over five years to install EV chargers mostly along interstate highways.

ABC will provide analysis and information to its members and industry and government stakeholders regarding language on pages 36 and 70 of the notice of proposed rulemaking and will submit comments to the FHWA. If you perform EV charging station work currently, or would like to get into this marketplace, please reach out to Michael Altman and Ben Brubeck to participate in ABC’s investigation into the impact of the proposed rule. This may also be an opportunity for ABC chapters and their workforce development partners to offer registered apprenticeship programs specific to electrical trades.

In response to a Nov. 29, 2021, request for information on the Development of Guidance for Electric Vehicle Charging Infrastructure, ABC submitted comments to the FHWA on behalf of member contractors who install and perform work related to EV charging stations and other alternative clean energy fuel stations on Jan. 28. ABC said needlessly excluding all contractors and workers who do not participate in the EVITP and/or government-registered apprenticeship programs from building EV charging station and alternative fuel projects could be problematic. ABC urged regulators to avoid any language or additional regulatory actions that might limit opportunities for experienced and quality contractors and skilled construction workers that already build EV charging stations and related alternative fuel infrastructure from winning contracts. ABC expressed concerns that future guidance and regulations might needlessly increase costs, reduce competition from contractors and artificially shrink the pool of qualified construction labor needed to build EV charging stations and alternative clean energy projects, undermining the Biden administration’s clean energy goals.

The proposed rule confirms ABC’s concerns with the 2021 proposal, which is part of a broader effort by the Biden administration to steer clean energy work to unionized contractors and labor. ABC member contractors comprise a key segment of the construction industry’s EV contracting base. Failing to encourage an inclusive policy will ultimately undermine the Biden administration’s goal of increasing the number of EV charging stations across America from 48,000 to 500,000 by 2030 and building America’s new clean energy infrastructure.

The June 9 proposed rule also provides states guidance on applying for their share of the National Electric Vehicle Infrastructure Formula Program. States must submit an EV Infrastructure Deployment Plan to a new federal Joint Office of Energy and Transportation that describes how a state intends to use the funding by Aug. 1, 2022. States must demonstrate compliance with forthcoming FHWA guidelines.

Powered by WPeMatico

On June 6, ABC responded to the Office of Management and Budget’s request for information on new “Buy America” requirements for construction materials on federally assisted projects. Enacted in November 2021, the $1.2 trillion Infrastructure Investment and Jobs Act expanded and made significant changes to Buy America requirements for federally funded infrastructure projects.

The IIJA requires the following 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:

(1) 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.

(2) 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.

(3) All construction materials are manufactured in the United States. This means that all manufacturing. processes for the construction material occurred in the United States.

ABC’s letter urged the OMB to carefully study and seek extensive public comment on these requirements prior to implementation. While ABC supports strategies to expand domestic jobs and manufacturing to avoid global supply chain disruptions and capture economic benefits within America, Buy America requirements must be balanced with safeguards against increased costs and delays of infrastructure projects funded by taxpayers. ABC’s letter highlighted these key points:

• The construction industry faces significant supply chain challenges.
• Multiple federal agencies have already provided six-month Buy America waivers.
• The OMB should consider agency staffing needs for an expected high volume of waiver requests.
• Separate rulemakings for each construction material would lead to more effective implementation.

ABC will continue to monitor implementation of Buy America requirements and participate in the regulatory process.  

Powered by WPeMatico

Powered by WPeMatico