Category: News Line

On April 14, the House Committee on Transportation and Infrastructure hosted a “Members’ Day Hearing” to seek recommendations on the policy priorities of members of the U.S. House of Representatives as they begin to consider legislation to reauthorize surface transportation legislation, which expires at the end of September.

After  the hearing, Rep. Ted Budd (N.C.), sponsor of ABC’s priority legislation, the Fair and Open Competition Act (H.R. 1284), sent a letter to the House Committee on Transportation and Infrastructure leadership signed by 26 members of the U.S. House expressing enthusiastic support for a fair and open competitive bidding process and strong opposition to project labor agreement mandates on federal and federally assisted taxpayer-funded construction projects.

Rep. Budd also provided written testimony urging the Committee to consider to include the Fair and Open Competition Act in the surface transportation reauthorization, while also warning the members of the harm that mandating PLAs would have on the construction industry.

“I ask that the committee include my Fair and Open Competition Act, H.R. 1284, in the surface transportation bill. This bill prevents federal agencies and recipients of federal assistance from requiring contractors to sign controversial project labor agreements (PLAs) as a condition of winning a construction contract. This would ensure that taxpayer funded construction contracts are awarded through fair and open competition. This guarantees the best value for hardworking taxpayers by prohibiting a rigged federal procurement process that discriminates against many small construction businesses. Many of the bill’s 45 cosponsors have signed onto a letter asking the committee to include this proposal ” said Rep. Budd. Rep. Budd’s full written testimony can be found here.

In a similar effort, on March 31, Sen. Todd Young (R-Ind.) authored a letter addressed to the leadership of the infrastructure-focused Senate Committee on Environment and Public Works that was signed by eight U.S. senators. Sen. Young is the lead sponsor of the Senate’s Fair and Open Competition Act (S. 403). The letter was also signed by Republican Sens. Tim Scott (S.C.), Kevin Cramer (N.D.), Cynthia Lummis (Wyo.), James Risch (S.D.), Roger Marshall (Kan.), Jerry Moran (Kan.), and John Barrasso (Wyo.).

Since its introduction, the Fair and Open Competition Act has been supported by a diverse coalition of construction and business associations as well as a large group of taxpayer, free market and consumer advocates.

These congressional efforts in support of FOCA come as President Joe Biden’s recently released American Jobs Plan calls on Congress to tie federal investments in infrastructure to ABC-opposed government-mandated project labor agreements/community workforce agreements, as well as prevailing wage regulations via the archaic Davis-Bacon Act, registered apprenticeship programs and the ABC-opposed PRO Act. President Biden’s plan also notably did not address a multi-year reauthorization of the expiring surface transportation legislation (the FAST Act), instead leaving the reauthorization process to Congress to address.

In ABC’s response to President Biden’s plan, president and CEO Mike Bellaman opposed the anticompetitive measures, saying, “Government-mandated PLAs exclude more than 87% of the U.S. construction workforce from rebuilding their communities and benefitting from well-paying middle-class jobs created by taxpayer investments in infrastructure.” Bellaman also pointed out that “taxpayers will spend 20% more per mandated PLA project, which results in fewer infrastructure improvements and less job creation to help America rebound from the pandemic’s economic devastation.”

As Congress begins to consider infrastructure-related legislation, ABC will continue to lead advocacy efforts to ensure that any federal investment in our nation’s infrastructure benefits all of the U.S. construction industry, regardless of labor affiliation. Learn more about ABC’s opposition to government-mandated PLAs and support for the Fair and Open Competition Act at freeenterprisealliance.org/foca.

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On April 12, ABC submitted comments in opposition to proposals from the U.S. Department of Labor’s Wage and Hour Division to rescind the Trump-era independent contractor and joint employer final rules.

DOL Independent Contractor Final Rule

ABC is on record as strongly supporting the Trump DOL’s January 2021 independent contractor final rule, which clarifies the WHD’s interpretation of independent contractor status under the Fair Labor Standards Act and promotes certainty for employers, independent contractors and employees.

On Feb. 5, the WHD proposed to delay the effective date of the final independent contractor rule from March 8 to May 7. On Feb. 22, ABC filed a request for extension of time to file comments on the delay proposal and further protested the department’s restriction on the nature of comments that could be filed.  The department denied the extension request on Feb. 24.

On Feb. 24, ABC submitted comments arguing that the WHD’s hasty and unsupported attempt to delay the effective date of the independent contractor final rule was arbitrary, capricious and in violation of the Administrative Procedure Act. ABC therefore urged the WHD to maintain the final rule’s effective date of March 8.

On March 4, the WHD issued a final rule that delays the Trump DOL’s independent contractor final rule’s effective date from March 8 to May 7, 2021. Soon after, on March 12, DOL issued a proposal to withdraw the independent contractor final rule.

On March 26, ABC, ABC Southeast Texas Chapter and the Coalition for Workforce Innovation filed suit against DOL for delaying the effective date of the independent contractor final rule and proposing to withdraw it. The filed complaint asserts that the steps taken by DOL to negate the independent contractor final rule are in violation of the Administrative Procurement Act.

On April 12, ABC submitted comments in opposition to the DOL’s proposal to withdraw the independent contractor final rule. ABC argued that the final delay rule was unlawfully promulgated and because the department’s subsequent proposal to withdraw the independent contractor final rule relied on the unlawfully promulgated rule for the assertion that the independent contractor final rule had not already gone into effect, the subsequent proposal itself must be ordered withdrawn.

DOL Joint Employer Final Rule

ABC applauded the Trump administration for issuing the 2020 DOL joint employer final rule, which promised to make the joint employment test more narrow and focused.

On Feb. 26, 2020, 18 states sued the department in federal court to strike down its final rule (see State of New York v. Scalia, 1:20-cv-01689 (S.D. N.Y. Feb. 26, 2020). A business coalition that includes ABC intervened in the case, in part to defend the construction industry against unwarranted attacks on the industry’s long-established methods of doing business by the state plaintiffs.

On Sept. 8, a U.S. District Court for the Southern District of New York judge ruled that parts of the department’s joint employer final rule are illegal.  ABC believes the judge got it wrong on both procedural and substantive grounds and filed a notice of appeal on Nov. 6.  On Jan. 15, 2021, ABC joined in the brief of intervenor-appellant filed by the trade associations that filed the joint appeal. The department filed its own brief to the appeals court, criticizing the district court decision.

On March 12, the department published a proposed rule to rescind the joint employer final rule. On March 31, the department filed a motion asking the federal appellate court to hold the appeal in abeyance for six months, until Oct. 18, 2021, in order to allow the department time to review and analyze the comments and make a final determination regarding rescission of the joint employer final rule. On April 8, the second circuit denied the department’s motion to hold the appeal in abeyance.

On April 12, ABC submitted comments opposing the department’s proposal to rescind the Trump-era joint employer rule final rule. ABC argued the current rule clarifies the department’s interpretation of joint employer status under the FLSA and promotes certainty for employers and employees. The department’s proposed rule to rescind the final rule is arbitrary and capricious, particularly in its primary reliance on the district court decision, which the department itself has criticized as wrongly decided in the pending appeal.

ABC will continue to provide updates in Newsline on both the independent contractor and joint employer rules.

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ABC has launched a COVID-19 Vaccine Toolkit as part of the Coronavirus Update webpage to help inform and educate members about the latest available resources and information on the COVID-19 vaccine.

The webpage is set up so that members can easily navigate through the resources, which include five categories of information from the Centers for Disease Control and Prevention, the U.S. Equal Employment Opportunity Commission and ABC general counsel Littler Mendelson P.C.

1. COVID-19 Vaccines—Important Things to Know
2. COVID-19 Vaccination for Essential Workers
3. EEOC Guidance on EEO Law and COVID-19 Vaccination
4. Common Questions Regarding COVID-19 Vaccine
5. COVID-19 Statewide Vaccination Plans

In addition to the new toolkit, ABC National will be hosting a webinar on Thursday, April 15, at 3 p.m. ET, “COVID-19 Vaccine—Legal and Practical Considerations for Employers,” to help employers navigate the constantly evolving legal landscape and unique employee relations issues tied to vaccination programs in the employment setting. Register now.

The Construction Industry Safety Coalition, of which ABC is a member, and the National Institute for Occupational Safety and Health will also present a webinar, COVID-19 Vaccines and Construction: Key Things to Know on Wednesday, April 21, at 2 p.m. ET. Scott Earnest, PhD, PE, CSP, director of the NIOSH Office of Construction Safety and Health and Dr. Margaret Kitt, MPH, MD, deputy director of NIOSH, will share information on what we know about the current COVID-19 vaccines, when and how construction workers can get vaccinated and frequently asked questions.

Disclaimer: Issues related to COVID-19 vaccination in the workplace are governed by various laws and regulations. The resources available on the COVID-19 Vaccine Toolkit webpage do not convey or constitute legal advice, nor is it intended to be acted upon as such. Employers should consult with counsel for guidance on legal questions related to COVID-19 vaccinations in the workplace.

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ABC has added Nevada Chapter member Mike Dillon of Dillon Health to the Beam Club Presidential Level.

The Beam Club was established in 1966 to recognize ABC’s top membership recruiters for their commitment to growing the association. By recruiting five new members, ABC members are automatically enrolled in the Beam Club by their chapter. Members receive one point for each new member recruited. Beam Club activity is ongoing from year to year, with members’ point totals continually accruing and advancing members to the next Beam Club award level.

To reach the Presidential Level of the Beam Club, ABC members must recruit between 25 and 49 new members.

For more information about the Beam Club, contact Leiloni Hayward at [email protected].

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ABC has signed on to the U.S. Pan Asian American Chamber of Commerce Education Foundation’s call to defeat hate and restore inclusion and respect. After witnessing an escalation of hate and assault, physical and verbal abuse, cyberbullying and racial slurs directed at members of the Asian American and Pacific Islander community, USPAACC asked people and organizations to support its call for honest dialog, investments in inclusion, celebration of differences, speaking out against racism and erasing stereotypes. ABC members and leaders are invited to sign on and help #StopAsianHate.

The U.S. Pan Asian American Chamber of Commerce Education Foundation is the most established and effective national nonprofit nonpartisan organization representing all Asian American and Asian American-related groups in business, sciences, the arts, sports, education, public and community services. For 35 years, USPAACC has served as the unified voice for equal opportunity in business for Asian Americans, as the gateway to corporate and government contracts, to Asian American suppliers, and information about Asian Americans and the Asia-Pacific and Indian Subcontinent markets. In 2017, ABC and USPAACC signed a memorandum to foster competition in construction, including a focus on passing fair and open competition legislation.

Learn more on the USPAACC website. 

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The U.S. Equal Employment Opportunity Commission announced that the 2019 and 2020 EEO-1 Component 1 data collection will open on Monday, April 26, 2021, and the deadline for filing this data will be Monday, July 19, 2021.

According to an EEOC news release, the EEO-1 Component 1 collects workforce data from employers with 100 or more employees and federal contractors with 50 or more employees. When the collection opens, resources to assist filers with their submissions will be available on a new dedicated website for the EEOC’s data collections.

More information on EEO-1 Component 1 data and other EEO data collections can be found on the EEOC website.

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ABC has added Florida Gulf Coast Chapter member Nick Krarup of Coastal Construction to the Beam Club Presidential Level.

The Beam Club was established in 1966 to recognize ABC’s top membership recruiters for their commitment to growing the association. By recruiting five new members, ABC members are automatically enrolled in the Beam Club by their chapter. Members receive one point for each new member recruited. Beam Club activity is ongoing from year to year, with members’ point totals continually accruing and advancing members to the next Beam Club award level.

To reach the Presidential Level of the Beam Club, ABC members must recruit between 25 and 49 new members.

For more information on the Beam Club, contact Leiloni Hayward at [email protected].

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On March 30, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs updated its Annual Vietnam Era Veterans’ Readjustment Assistance Act Benchmark Database to reflect a new hiring benchmark of 5.6%, which is effective March 31.

According to the OFCCP, “Contractors required by VEVRAA to develop a written Affirmative Action Program must also establish a hiring benchmark for protected veterans every year, or adopt the national benchmark provided by the OFCCP each year, as part of their AAP update. Under either approach, contractors must compare the percentage of hires who are protected veterans in each of their written AAPs to the hiring benchmark set for that AAP. Contractors should use the result of this comparison when assessing the effectiveness of their veteran outreach and recruitment efforts.”

Contractors can choose one of the two following options for establishing the required hiring benchmark for each of their written AAPs:

1. Adopt the national percentage of veterans in the civilian labor force or
2. Develop individualized hiring benchmark

More information on the VEVRAA requirements can be found on the U.S. Department of Labor’s website. For additional questions, contact the OFCCP Help Desk at 800-397-6251 (TTY: 877-889-5627).

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On March 31, the Biden administration released a more than $2 trillion infrastructure outline titled the “American Jobs Plan.” While the plan calls for federal spending over the next eight years to improve the nation’s infrastructure, including for transportation, broadband, energy, and drinking water, it also includes funding for schools and child-care facilities, affordable housing, workforce development and manufacturing.

Importantly, the Biden plan calls on Congress “to ensure all workers have a free and fair choice to join a union by passing the Protecting the Right to Organize (PRO) Act, and guarantee union and bargaining rights for public service workers.” The ABC-opposed PRO Act threatens the fundamental rights of workers and job creators while putting the recovery of our economy at risk.

Biden’s plan also urges Congress to tie infrastructure investments funded under this plan to ABC-opposed government-mandated project labor agreements/community workforce agreements, prevailing wage regulations via the archaic Davis-Bacon Act and registered apprenticeship programs. All of these policies are likely to increase costs, reduce job creation, decrease the number of infrastructure projects and discourage ABC members and their skilled local workforce from competing for taxpayer-funded construction projects to rebuild their own communities.

Transportation Infrastructure

While the plan allocates $621 billion for “transportation infrastructure,” a large portion of this funding ($174 billion) is for investment in spurring the electric-vehicle market, and an additional $165 billion is dedicated to repairing public transit vehicles and freight rail, leaving approximately only $282 billion for the nation’s roads and bridges—a fraction of what is needed to truly modernize our nation’s transportation infrastructure.

According to the American Society of Civil Engineers, the United States has a $786 billion backlog of road and bridge capital needs, including $435 billion in repairing existing roads, $125 billion for bridge repair, $120 billion for targeted system expansion and $105 billion for safety enhancements, operational improvements and environmental projects.

Additionally, the plan says nothing about reauthorizing the expiring surface transportation legislation or shoring up the Highway Trust Fund in the future.

Additional Provisions in the Biden Plan

• $111 billion for safer drinking water, wastewater and stormwater systems.
• $100 billion for high-speed broadband.
• $100 billion to upgrade the U.S. power infrastructure.
• $213 billion to “produce, preserve and retrofit more than two million affordable and sustainable places to live.”
• $137 billion for public schools, community colleges and child care facilities.
• $28 billion for veterans hospitals and federal buildings.
• $400 billion for “expanding access to quality, affordable home- or community-based care for aging relatives and people with disabilities.”
• $180 billion for research and development in new infrastructure technologies, climate science and innovation, and racial and gender inequalities in STEM and R&D
• $300 billion for strengthening manufacturing in the United States and creating new manufacturing jobs.
• $100 billion for workforce development, which provides $40 billion for a new dislocated-workers program to help workers gain new skills for in-demand jobs, $12 billion for targeting workers in underserved communities and $48 billion to expand existing registered apprenticeship, pre-apprenticeship and community college partnership programs. 

Biden’s plan focuses heavily on federal investments supporting prevailing wage rates, project labor agreements, community workforce agreements and registered apprenticeship programs, and calls for Congress to enact the Protecting the Right to Organize (PRO) Act, which implements a slew of costly, anti-small-business policies.

Tax Increases

While the plan calls for spending to complete these projects over the next eight years, that includes tax increases that would take 15 years to cover the cost of the $2 trillion plan, including:

• Increasing the corporate tax rate from 21% to 28%
• Increasing the minimum tax on U.S. multinational corporations to 21% and calculating it on a country-by-country basis to target profits in tax havens. 
• Eliminating tax subsidies and tax credits for fossil fuel industries.
• Beefed-up IRS enforcement on corporations.

ABC Responds

In a statement from ABC President and CEO Michael Bellaman, ABC called for fair and open competition and bipartisan ideas the infrastructure plan.

“Our nation is in strong bipartisan agreement that America’s crumbling roads, bridges, schools and water, energy and transportation systems are in desperate need of modernization in order to accelerate our strong economic comeback and keep our country competitive in a global economy. ABC continues to advocate for any plan to modernize our nation’s infrastructure to include policies to reduce costly and ineffective regulations, ensure fair and open competition, address the construction industry’s skilled worker shortage, embrace new technology, and pursue value-adding, public-private partnerships that can help bring critical construction projects to market in a more economical and efficient manner. Unfortunately, much of the Biden plan ignores ABC’s infrastructure policy recommendations, while proposing tax increases on job-creating construction firms that are still recovering from the effects of the COVID-19 pandemic.

“While policy details are still emerging and the infrastructure plan will need to go through Congress, it is disappointing to see the Biden administration support the use of divisive government-mandated project labor agreement schemes on taxpayer-funded construction projects. Government-mandated PLAs exclude more than 87% of the U.S. construction workforce from rebuilding their communities and benefitting from well-paying middle-class jobs created by taxpayer investments in infrastructure. It also means taxpayers will spend 20% more per PLA project, which results in fewer infrastructure improvements and less job creation to help America rebound from the pandemic’s economic devastation. Coupled with a call for Congress to pass the Protecting the Right to Organize Act, it is clear the Biden administration’s infrastructure plan is designed to help powerful donors and special interests instead of all Americans.

“It is difficult to support an infrastructure plan that excludes the 87% of the workforce that chooses not to join a union and promotes the PRO Act, which eliminates workers’ freedom to choose how to pursue their career dreams, places their personal information security at risk and legalizes intimidation and secondary boycotting against a company’s supply chain and customers.

“We encourage President Biden to work with Congress and stakeholders to pursue a bipartisan path forward that would efficiently and effectively modernize our infrastructure, drive economic growth, welcome every construction professional and deliver value to all taxpayers. ABC will continue to work with Congress and the Biden administration to improve the infrastructure plan.”

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On March 26, ABC, ABC’s Southeast Texas Chapter and the Coalition for Workforce Innovation filed suit against the U.S. Department of Labor regarding its delay and proposed withdrawal of the Trump DOL independent contractor final rule. The complaint alleges the Biden administration arbitrarily and without authority delayed the final rule from going into effect, depriving many contractors of clear and uniform guidance on the proper standard for compliance with the Fair Labor Standards Act.

The Trump DOL’s independent contractor final rule, which should have taken effect on March 8, was delayed by the Biden DOL to May 7. Soon after, the Biden DOL issued a notice of proposed rulemaking to withdraw the final rule in its entirety.  ABC’s general counsel, Littler Mendelson P.C., is representing the plaintiffs in the legal challenge.

Background

ABC is on record as strongly supporting the Trump DOL independent contractor final rule, which clarifies the department’s interpretation of independent contractor status under the Fair Labor Standards Act and promotes certainty for employers, independent contractors and employees.

However, on March 4, the Biden administration announced a final rule that delayed the Trump-era independent contractor final rule’s effective date from March 8 to May 7, 2021. On Feb. 24, ABC submitted comments in opposition to the DOL’s proposal to delay the effective date because the final rule provides urgently needed clarification of the independent contractor standard applicable under the FLSA.

On March 12, the DOL published a proposed rule to withdraw the Trump-era final rule. ABC issued a statement condemning the DOL’s proposal, stating the independent contractor final rule promised to promote economic growth in the construction industry by providing greater clarity and removing unnecessary burdens on construction industry employers.

ABC will continue to monitor this important issue and provide any updates in Newsline.

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