Category: News Line

On July 29, the U.S. Department of Labor announced a final rule to rescind the 2020 Joint Employer Status under the Fair Labor Standards Act rule, which goes into effect on Sept. 28, 2021.

An analysis written by ABC National’s general counsel Littler Mendelson states, “Courts are now likely to return to the application of various, and not always consistent, multi-factor tests derived from the cases interpreting the Department’s outdated 1959 standard.  This in turn means less certainty for employers as to when they may be liable for wage and hour violations under the FLSA as a “joint employer” of an unrelated company’s employees.”

ABC released the following statement on DOL’s rescission of the 2020 final rule, “While we certainly saw this coming, it is still disappointing that the Biden administration rescinded the 2020 joint employer final rule,” said Ben Brubeck, ABC vice president of regulatory, labor and state affairs. “ABC supported the prior final rule because it 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.”  

The 2020 joint employer final rule promised to make the joint employment test narrower and more focused and went into effect on March 16, 2020. In February 2020, 18 states sued DOL in federal court to strike down its joint employer final rule, and in September 2020, a U.S. District Court for the Southern District of New York judge ruled that parts of the final rule were illegal.

A business coalition that includes ABC intervened in the case, in part to defend the construction industry against unwarranted attacks by the state plaintiffs on the industry’s long-established methods of doing business. The case is currently on appeal to the Second Circuit Court of Appeals.

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On July 28, U.S. senators voted to advance a bipartisan infrastructure bill, which will set up a final vote on the measure in the coming days. The procedural motion was approved 67-32, with 17 Republicans joining all Democrats to begin legislative action.

The vote came just hours after senators announced that they have reached an agreement on some of the outstanding items of the bipartisan infrastructure negotiations. The breakthrough follows disagreements over legislative issues including pay-fors and transit funding that prevented a deal from emerging earlier.

The bipartisan framework, which reportedly includes nearly $600 billion in new spending on roads, bridges and broadband infrastructure, totals roughly $1 trillion in overall investment.

The group of senators, led by Sens. Kyrsten Sinema, D-Ariz., and Rob Portman, R-Ohio, have yet to translate the negotiated framework into public legislative text. The White House recently released a “fact sheet,” calling the deal a “once-in-a-generation investment in our infrastructure, which will be taken up in the Senate for consideration.”

In addition, Senate Democrats continue to insist that the bipartisan infrastructure framework be considered and passed along with a $3.5 trillion social spending package before the August recess. While the bipartisan plan would require 60 votes to pass in the U.S. Senate, Senate Democrats will seek to pass the social spending package through the budget reconciliation process, which only requires 50 votes.

Of note, House Speaker Nancy Pelosi, D-Calif., has reiterated that the House will not take up either the bipartisan framework or the reconciliation package until the Senate passes both measures.

Meanwhile, ABC continues to advocate for fair and open competition, urging Senate negotiators to oppose government-mandated project labor agreements in infrastructure legislation. Leading the Build America Local coalition, ABC and other construction industry and business organizations continue to educate targeted members of the Senate and the American public about controversial government-mandated project labor agreements, which reduce competition and increase costs for the construction of taxpayer-funded affordable housing, clean energy and infrastructure projects across America.

The Build America Local website houses a variety of educational and social media materials and gives constituents access to a grassroots tool to tell their elected leaders to support local workers and businesses by opposing government-mandated PLAs in federal infrastructure legislation. Learn more about the dangers of PLAs in this 30-second ad, Tell Senators to Oppose PLA Mandates.

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On July 28, U.S. senators announced that they have reached an agreement and support moving forward with legislation on the bipartisan infrastructure framework. The breakthrough in negotiations by the 22 senators involved follows disagreements over legislative issues including pay-fors and transit funding that prevented a deal from emerging earlier.

The bipartisan framework, which reportedly includes nearly $600 billion in new spending on roads, bridges and broadband infrastructure, is said to total roughly $1 trillion in overall investment.

Although a procedural vote to advance the framework to debate is likely to be scheduled later on July 28, the group of senators, led by Sens. Kyrsten Sinema, D-Ariz., and Rob Portman, R-Ohio, have yet to translate the negotiated framework into public legislative text. The White House recently released a “fact sheet,” calling the deal a “once-in-a-generation investment in our infrastructure, which will be taken up in the Senate for consideration.”

In addition, Senate Democrats continue to insist that the bipartisan infrastructure framework be considered and passed along with a $3.5 trillion social spending package before the August recess. While the bipartisan plan would require 60 votes to pass in the U.S. Senate, Senate Democrats will seek to pass the social spending package through the budget reconciliation process, which only requires 50 votes.

Of note, House Speaker Nancy Pelosi, D-Calif., has reiterated that the House will not take up either the bipartisan framework or the reconciliation package until the Senate passes both measures.

Meanwhile, ABC continues to advocate for fair and open competition, urging Senate negotiators to oppose government-mandated project labor agreements in infrastructure legislation. Leading the Build America Local coalition, ABC and other construction industry and business organizations continue to educate targeted members of the Senate and the American public about controversial government-mandated project labor agreements, which reduce competition and increase costs for the construction of taxpayer-funded affordable housing, clean energy and infrastructure projects across America.

The Build America Local website houses a variety of educational and social media materials and gives constituents access to a grassroots tool to tell their elected leaders to support local workers and businesses by opposing government-mandated PLAs in federal infrastructure legislation. Learn more about the dangers of PLAs in this 30-second ad, Tell Senators to Oppose PLA Mandates.

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On July 21, the National Labor Relations Board issued a decision in Lippert Components Inc. 371 NLRB No. 8 (2021), finding that a union did not violate the National Labor Relations Act through its use of inflatables and banners intended to target employers.

“The NLRB decision reaffirming the status quo is disappointing to the construction industry because it allows unions to continue to engage in coercive tactics towards neutral parties, contrary to the intent of federal labor laws,” ABC said in a recent statement.  “We generally agreed with NLRB member Emanuel’s dissenting opinion. Scabby and other union balloon creatures are examples of threatening and/or coercive conduct during union pickets and boycotts and should constitute secondary activity.”

According to an NLRB news release, charges were filed by Lippert Components Inc. against the International Union of Operating Engineers, Local Union No. 150, after the IUOE displayed a 12-foot inflatable rat with red eyes, fangs and claws (“Scabby the Rat”) and two large banners, one targeting Lippert Components near the public entrance to a trade show.

Former NLRB General Counsel Peter Robb alleged that the display of these items was unlawfully coercive, arguing that the Board should overrule precedent. However, the NLRB dismissed the complaint in a 3-1 decision, with Chair Lauren McFerran (D) and Republican members Marvin Kaplan and John Ring concurring and William Emanuel dissenting.

In November 2020, ABC filed an amicus brief in support of Lippert, urging the board to adopt a rule of law that the utilization of rat balloons and confrontational banners is a form of “picketing” that should be prohibited whenever such use threatens, coerces or restrains protected parties within the meaning of the NLRA. The U.S. Chamber of Commerce, Associated General Contractors and other business groups also filed briefs in support of Lippert.  

ABC will continue to provide updates on the Lippert decision in Newsline.

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On July 22, the National Labor Relations Board swore in Jennifer Abruzzo to serve as general counsel for a four-year term. This occurred after the U.S. Senate confirmed Abruzzo on July 21 by a vote of 51-50, with Vice President Kamala Harris casting the tie-breaking vote. Prior to her appointment, Abruzzo most recently served as Special Counsel for Strategic Initiatives for Communications Workers of America and as and a former acting general counsel for the NLRB in 2017.

The swearing in of Abruzzo comes after President Biden’s unprecedented firing of former Republican NLRB General Counsel Peter Robb, along with deputy general counsel Alice B. Stock, on inauguration day, despite having 10 months left in his term with the independent agency.

On Jan. 25, Biden designated Peter Sung Ohr, a democrat NLRB regional director of Region 13 in Chicago, to serve as acting general counsel. Shortly after on Feb. 17, President Joe Biden nominated Abruzzo.

The NLRB is currently comprised of one Democrat, Chair Lauren McFerran, and three Republicans, William Emanuel, Marvin Kaplan and John Ring. However, with a potential vote in the Senate this week on the nominations of union attorney Gwynne Wilcox to fill the currently vacant fifth seat on the board and David Prouty to fill Emanuel’s seat when his term ends in August 2021, it is clear that President Biden is re-establishing a Democratic majority at the agency to advance his pro-labor agenda. It is anticipated that many board labor policies adopted during the Trump administration will be overturned in the coming year.

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On July 21, the U.S. Department of Labor announced a proposed rule that would require federal contractors to pay a $15 minimum wage to workers working on or in connection with a federal government contract. The public has until Aug. 23 to comment on the proposal. 

Beginning Jan. 30, 2022, Executive Order 14026, Increasing the Minimum Wage for Federal Contractors, requires all agencies to incorporate a $15 minimum wage in new contract solicitations and to implement the minimum wage into new contracts by March 30, 2022. Agencies must also implement the higher wage into existing contracts when the parties exercise their option to extend such contracts, which generally occurs annually. The minimum wage will continue to be indexed for inflation. 

Ben Brubeck, ABC’s vice president of regulatory, labor and state affairs, issued the following statement when President Biden announced the order on April 27: 

“ABC has long held that the market should determine wages in the construction industry, where well-paying merit shop construction jobs sustain the careers of 87.3% of the workforce. In general, ABC’s government contractor members pay wage rates substantially higher than $15 per hour under the requirements of the Davis-Bacon Act and, to a lesser extent, the Service Contract Act. The primary concern with this executive action is not the wage rate itself but rather the unlawful and unprecedented power grab by the executive branch to set a new minimum wage in direct contravention of the DBA and SCA.” 

In Feb. 2014, the Obama-Biden administration’s Executive Order 13658 required federal contractors to pay employees working on federal contracts $10.10 per hour, subsequently indexed for inflation. Currently, the minimum wage for workers performing work on covered federal contracts is $10.95 per hour.

ABC will continue to provide updates on this important issue in Newsline. 

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On July 15, ABC called for changes to the U.S. Department of the Treasury’s interim final rule encouraging project labor agreements and other anti-competitive and costly labor policies on certain state and local projects funded by the American Recovery Plan Act of 2021. 

Treasury issued the May 17 rulemaking, titled Coronavirus State and Local Fiscal Recovery Funds, along with its Compliance and Reporting Guidance: State and Local Fiscal Recovery Funds, to provide guidance on eligible uses for $350 billion in fiscal recovery funds established under the ARPA. The guidance specifically includes language promoting certain controversial labor provisions, including project labor agreements, community benefits agreements and prevailing wage and local hire requirements on eligible water, sewer and broadband infrastructure projects exceeding $10 million funded by the State and Local Fiscal Recovery Fund program.

In its comments, ABC expressed concerns with the Treasury’s encouragement of government-mandated PLAs and the negative impact of these PLAs, which harm businesses and their employees, reduce competition, needlessly increase construction costs by up to 20% per project and more.

Additionally, ABC called for Treasury to remove all language and state and local reporting requirements related to government-mandated PLAs for eligible projects or to clarify that PLA mandates and other labor provisions are not mandated as a condition of accessing SLFRF program funding.

ABC also recommended that Treasury eliminate burdensome reporting requirements on state and local government recipients of SLFRF program funding if they choose not to require costly PLA mandates on eligible infrastructure projects exceeding $10 million.

“It’s concerning to see the Treasury attempt to push state and local procurement officials into using PLA requirements and other schemes designed to steer taxpayer-funded construction contracts to unionized contractors when the ARPA bill text said nothing about these specific anti-competitive and costly policies,” said Ben Brubeck, ABC’s vice president of regulatory, labor and state affairs. “ABC will continue to explore legal options to challenge this likely illegal policy and will be working with stakeholders to help them understand their options and federal reporting requirements when building eligible infrastructure projects.”

ABC has made multiple efforts to express concerns with the IFR’s language encouraging state and local governments to mandate PLAs, including a letter to U.S. Treasury Secretary Janet Yellen and an ABC member grassroots campaign that resulted in over 425 comments being sent to the Treasury in opposition to its misguided pro-PLA policy. Additionally, U.S. Rep. Ted Budd, R-N.C., chief sponsor of the ABC-priority Fair and Open Competition Act (H.R. 1284), led a congressional letter to the Treasury concerning the pro-PLA language in their rulemaking.

ABC encourages stakeholders to monitor the Treasury’s Coronavirus State and Local Fiscal Recovery Funds FAQ document, which was most recently updated July 14 with new details about the applicability of the Davis-Bacon Act and prevailing wage laws, PLAs and other labor policies to eligible projects (see section 6.17).

More information on the SLFRF program and rulemaking can be found in the Compliance and Reporting Guidance, Treasury fact sheet and on the department’s website.

ABC chapters, members and stakeholders with questions or concerns about ARPA projects subjected to these policies are encouraged to contact ABC National.

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On July 15, ABC submitted comments in response to the U.S. Department of the Treasury’s interim final rule encouraging project labor agreements and other anti-competitive and costly labor policies on certain state and local projects funded by the American Recovery Plan Act of 2021. 

Treasury issued the May 17 rulemaking, titled Coronavirus State and Local Fiscal Recovery Funds, along with its Compliance and Reporting Guidance: State and Local Fiscal Recovery Funds, to provide guidance on eligible uses for $350 billion in fiscal recovery funds established under the ARPA. The guidance specifically includes language promoting certain controversial labor provisions, including project labor agreements, community benefits agreements and prevailing wage and local hire requirements on eligible water, sewer and broadband infrastructure projects exceeding $10 million funded by the State and Local Fiscal Recovery Fund program.

In its comments, ABC expressed concerns with the Treasury’s encouragement of government-mandated PLAs and the negative impact of these PLAs, which harm businesses and their employees, reduce competition, needlessly increase construction costs by up to 20% per project and more.

Additionally, ABC called for Treasury to remove all language and state and local reporting requirements related to government-mandated PLAs for eligible projects or to clarify that PLA mandates and other labor provisions are not mandated as a condition of accessing SLFRF program funding.

ABC also recommended that Treasury eliminate burdensome reporting requirements on state and local government recipients of SLFRF program funding if they choose not to require costly PLA mandates on eligible infrastructure projects exceeding $10 million.

“It’s concerning to see the Treasury attempt to push state and local procurement officials into using PLA requirements and other schemes designed to steer taxpayer-funded construction contracts to unionized contractors when the ARPA bill text said nothing about these specific anti-competitive and costly policies,” said Ben Brubeck, ABC’s vice president of regulatory, labor and state affairs. “ABC will continue to explore legal options to challenge this likely illegal policy and will be working with stakeholders to help them understand their options and federal reporting requirements when building eligible infrastructure projects.”

ABC has made multiple efforts to express concerns with the IFR’s language encouraging state and local governments to mandate PLAs, including a letter to U.S. Treasury Secretary Janet Yellen and an ABC member grassroots campaign that resulted in over 425 comments being sent to the Treasury in opposition to its misguided pro-PLA policy. Additionally, U.S. Rep. Ted Budd, R-N.C., chief sponsor of the ABC-priority Fair and Open Competition Act (H.R. 1284), led a congressional letter to the Treasury concerning the pro-PLA language in their rulemaking.

ABC encourages stakeholders to monitor the Treasury’s Coronavirus State and Local Fiscal Recovery Funds FAQ document, which was most recently updated July 14 with new details about the applicability of the Davis-Bacon Act and prevailing wage laws, PLAs and other labor policies to eligible projects (see section 6.17).

More information on the SLFRF program and rulemaking can be found in the Compliance and Reporting Guidance, Treasury fact sheet and on the department’s website.

ABC chapters, members and stakeholders with questions or concerns about ARPA projects subjected to these policies are encouraged to contact ABC National.

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According to the Occupational Safety and Health Administration, more than 40% of heat-related worker deaths occur in the construction industry.  As with all incidents, heat illness is entirely preventable, provided you develop and implement the appropriate preventive measures. 

On July 15, OSHA released additional materials to educate the workforce on heat illness prevention. These resources include:

• A 60-second public service announcement on heat illness prevention
• An alert on working safely in hot weather in English and Spanish

These add to the materials OSHA issued on July 2, which include:

Visit osha.gov for heat planning and supervision and heat illness prevention guidance to help you protect your workers. Also, visit your app store to download the Heat Safety Tool smartphone app from the National Institute for Occupational Safety & Health, which provides the heat index (temperature and relative humidity), symptoms of and first aid treatment for heat illness, FAQs and additional tips for working in the heat.

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