Category: News Line

The Office of Federal Contract Compliance Programs has issued an amended Corporate Scheduling Announcement List for fiscal year 2020, which will help explain the requirements federal contractors need to follow to stay compliant as they work on federal and federally assisted projects.

According to an OFCCP news release, the original list was comprised of 2,250 evaluations: 500 compliance reviews (which include establishment-based reviews, corporate management compliance evaluation reviews, functional affirmative action program reviews and university reviews), 500 accommodation-focused reviews, 500 promotions-focused reviews, 250 Section 503-focused reviews and 500 compliance checks.

The updated CSAL removed all establishments selected to receive focused reviews and compliance checks in its updated list, which can be found on the agency’s website.

More information on the amended fiscal year 2020 CSAL can be found on the OFCCP website.

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On March 2, ABC, as a member of the Construction Industry Safety Coalition’s steering committee, sent a letter to the U.S. Department of Labor’s Occupational Safety and Health Administration Principal Deputy Assistant Secretary James “Jim” Frederick that outlined recommendations that OSHA should consider as it deliberates the need for an emergency temporary standard on COVID-19.  President Biden’s recent Executive Order 13999 on Protecting Worker Health and Safety directed OSHA to consider whether an ETS is warranted to address COVID-19 in the workplace.

Workplace safety and health is a priority for all members of the coalition and each is committed to helping create safer construction jobsites for workers, according to the CISC letter. For example, to ensure all members can easily access resource materials, CISC developed a COVID-19 Exposure Prevention Preparedness and Response Plan in March 2020 that has been made available in both English and Spanish and was provided at no cost to the construction industry. CISC updated the response plan four times to account for changes in guidance from the Centers for Disease Control and Prevention. The response plan is tailored to construction work and provides a comprehensive approach for minimizing the risk of exposure to COVID-19 in the construction work environment.  In addition to the response plan, CISC organized two safety standdowns related to COVID-19, one in April 2020 and the other just recently in January 2021.

The letter also highlights CISC’s concerns with potential provisions in a COVID-19 ETS and outlines the following recommendations that OSHA should consider if it decides to issue a COVID-19 standard:

• An ETS that does not account for the novel nature of the virus and the constantly changing public health knowledge would not be workable. This has become evident in the states that have adopted temporary or permanent COVID-19 standards, particularly California. California adopted its ETS effective Nov. 30, 2020, and based many of its worker protection provisions on the CDC guidance in effect at that time. The CDC updated its guidance less than a week after California adopted its ETS, rendering a key provision of the ETS obsolete. California’s ETS contains no mechanism to account for changes in CDC guidance. Therefore, Gov. Gavin Newsom (D) had to issue an executive order amending the relevant provision of the ETS to correspond to the CDC’s revised guidance.

More recently, the CDC released guidance advising that fully vaccinated individuals who are exposed to an infected individual are not required to quarantine. Although Virginia and California have endorsed the CDC’s guidance, neither Virginia’s permanent standard nor California’s ETS incorporate the CDC’s new guidance. In fact, Cal/OSHA’s latest ETS FAQs still state that “all prevention measures must continue to be implemented” after an employee is vaccinated. This means that, per the California ETS, employers must exclude a fully vaccinated employee from work if the employee has been exposed to an infected individual, despite the CDC and state guidance stating the exact opposite. Such an inflexible approach illustrates why an ETS is not workable.

• OSHA should avoid a broad standard that is generally applicable to all industries and instead should pursue a flexible approach that accommodates the unique needs of the wide variety of workplaces to which it would apply. As just one example, construction work is very different from general industry work, which is why construction has separate OSHA standards (29 Code of Federal Regulations Part 1926). Construction work is frequently performed outside in ever-changing conditions and varied work environments. A construction project can span for miles with work being performed at various stages along the span. Studies have shown that the risk of infection of a viral disease is greatest in indoor environments where there is a higher likelihood of “possible buildup of the airborne virus-carrying droplets” and the virus likely has “higher stability in indoor air.” As stated above, construction work often occurs outdoors with continuous air flow and this could substantially impact an appropriate regulatory approach. Even with construction work performed indoors, contractors have established mechanisms to protect employees in practical, effective ways.

• OSHA should avoid any provisions that exceed appropriate engineering, work practice controls and PPE. The temporary and permanent standards adopted by various states include excessive provisions, which have shown themselves to be unworkable. One such provision is a mandatory testing requirement. California’s ETS includes robust COVID-19 testing requirements covering all employees present in an exposed workplace during a COVID-19 outbreak. This type of mandate is not sustainable.

If OSHA chooses to go forward with an ETS for COVID-19, CISC recommends that OSHA adopt a specific approach for construction worksites modeled after CISC’s COVID-19 response plan. The plan has been implemented throughout the industry and adopted by large and small contractors. Further, it includes several components, including responsibilities of managers, supervisors and employees; control and preventative guidance to all employees; familiarization with the symptoms of COVID-19; jobsite protective measures specific to construction; personal protective equipment; and jobsite cleaning and disinfecting.

The CISC response plan is specifically geared to construction work and will be more effective at protecting workers in the construction industry than a broad, generally applicable standard created for traditional or indoor workspaces.

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On March 2, the U.S. Department of Labor’s Wage and Hour Division announced a final rule that delays the Trump administration’s DOL 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 Fair Labor Standards Act.

The DOL states, “This delay will allow the department additional time to review the multiple issues of law, policy and facts that warrant additional review and consideration in accordance with the Regulatory Freeze Memorandum before the independent contractor rule goes into effect.”

The WHD proposal indicated that the sole purpose of the delay was for the WHD to “review and consider the rule as the Regulatory Freeze Memorandum and Office of Management and Budget Memorandum M-21-14 contemplate,” specifically the “legal, policy and/or enforcement implications of adopting that standard.” WHD asserted that the proposed delay is reasonable and would not be disruptive since the “independent contractor final rule is not yet effective and WHD has not implemented the rule.”

In its comment letter, ABC argued that the WHD’s hasty and unsupported attempt to delay the effective date of the final rule is arbitrary, capricious and in violation of the Administrative Procedure Act. ABC therefore urges the WHD to maintain the rule’s current effective date of March 8.

ABC is on record as strongly supporting the Trump DOL’s independent contractor final rule. ABC believes it is essential that the final rule be allowed to take effect in March so that it can provide the additional clarity and guidance needed to properly classify workers in construction and avoid jeopardizing the ability of construction firms to continue the industry’s longstanding practice of utilizing legitimate independent contractors under the FLSA.

The rule will be officially published in the federal register on March 4.

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

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On March 2, ABC joined dozens of members of the Unlock American Investment Coalition in calling on Congress to improve and modernize the federal permitting process under the National Environmental Policy Act.

In its letter, the coalition addressed the economic issues brought on by the coronavirus pandemic and how investment in various infrastructure projects will encourage recovery and growth as long as the federal environmental review and permitting process is improved.

The letter states, “Due to such unnecessary delays, presidents from both parties have long identified the need for faster, more efficient permitting, issuing executive orders to expedite federal decision-making and accelerate project delivery. Adopting permit streamlining policies in conjunction with any infrastructure bill would reduce delays and improve the predictability of the federal permitting process, allowing businesses to plan and invest with confidence while enhancing economic productivity and environmental stewardship. This is a priority with bipartisan support and we are committed to work with you to ensure its inclusion in forthcoming infrastructure legislation.”

ABC has supported both legislative and regulatory efforts in modernizing and creating a more efficient NEPA review process, including support for H.R. 8333, the Building U.S. Infrastructure Through Limited Delays & Efficient Reviews (BUILDER) Act, during the 116^th Congress and for the U.S. Council on Environmental Quality’s final rule revising its regulations implementing the procedural provisions under NEPA in July 2020.

Additionally, ABC and several other organizations submitted comments in support of the U.S. Department of Transportation’s proposed revisions to its regulations implementing the procedural provisions of NEPA.

ABC will continue to provide legislative and regulatory updates on the federal permitting process in Newsline.

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On Feb. 25, the U.S. Department of Labor’s Employment and Training Administration issued updated guidance for the Pandemic Unemployment Assistance program, expanding eligibility for workers who may be able to participate.

According to a DOL news release, the new guidance expands eligibility to three categories of workers:

• Workers receiving unemployment benefits who had their continued regular unemployment benefits’ claims denied after they refused to work or accept an offer of work at a worksite not in compliance with coronavirus health and safety standards.
• Workers laid off or who have had their work hours reduced as a direct result of the pandemic.
• School employees working without a contract or reasonable assurance of continued employment who face reduced paychecks and no assurance of continued pay when schools are closed due to coronavirus.

Additionally, the eligibility expansions related to the coronavirus are retroactive, meaning they apply as if they had been included from the beginning of the PUA program. However, individuals filing their first initial PUA claim after Dec. 27, 2020, are limited to weeks of unemployment beginning on or after Dec. 6, 2020.

According to the DOL website, in order to receive unemployment insurance benefits, workers must file a claim with the unemployment insurance program in the state where they worked. Depending on the state, claims may be filed in person, by telephone or online. All questions regarding eligibility should be directed to the state employment agencies.

More information on unemployment insurance relief can be found on the DOL website.

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ABC has added Wisconsin Chapter member Jay Zahn of R & R Insurance Services Inc. to the Beam Club Hall of Fame 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 Hall of Fame Level of the Beam Club, ABC members must recruit between 50 and 99 new members.

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

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On Feb. 24, ABC submitted comments in opposition to the U.S. Department of Labor’s Wage and Hour Division proposal to delay the effective date of the Trump DOL’s final independent contractor rule from March 8 to May 7.

The WHD proposal indicates that the sole purpose of the delay is for the WHD to “review and consider the rule as the Regulatory Freeze Memorandum and Office of Management and Budget Memorandum M-21-14 contemplate,” specifically the “legal, policy and/or enforcement implications of adopting that standard.” WHD asserts that the proposed delay is reasonable and would not be disruptive since the “independent contractor final rule is not yet effective, and WHD has not implemented the rule.”

In the comment letter, ABC argued that the Trump DOL’s final rule must be allowed to go into effect in the meantime, because it provides urgently needed clarification of the independent contractor standard applicable under the Fair Labor Standards Act. The WHD’s hasty and unsupported attempt to delay the effective date of the final rule is arbitrary, capricious and in violation of the Administrative Procedure Act. ABC therefore urges the WHD to maintain the rule’s current effective date of March 8.

ABC is on record as strongly supporting the Trump DOL’s independent contractor final rule, which clarifies the WHD’s interpretation of independent contractor status under the FLSA and promotes certainty for employers, independent contractors and employees. ABC therefore believes it is essential that the final rule be allowed to take effect in March so that it can provide the additional clarity and guidance needed to properly classify workers in construction and avoid jeopardizing the ability of construction firms to continue the industry’s longstanding practice of utilizing legitimate independent contractors under the FLSA.

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On Feb. 17, in advance of meeting with a group of labor unions, President Biden rescinded the Trump Administration’s Executive Order 13801, which promoted industry-recognized apprenticeship programs. According to the White House fact sheet, “President Biden is also asking DOL to consider new rulemaking to reverse these programs and to immediately slow support for industry-recognized apprenticeship programs by pausing approval of new Standards Recognition Entities and ending new funding for existing Standards Recognition Entities.”

Under the Trump administration, the U.S. Department of Labor issued the IRAP final rule , officially titled Apprenticeship Programs, Labor Standards for Registration, Amendment of Regulations, which established a process for creating high-quality, industry-recognized apprenticeship programs by organizations that apply to become DOL-recognized Standards Recognition Entities. DOL excluded the construction industry from the scope of the IRAP final rule. ABC actively participated in the rulemaking and, in response to the Trump administration final rule, issued the following statement on March 11, 2020:

“All U.S. workers should have the opportunity to participate in DOL’s new industry programs, particularly as federal registered apprenticeship programs supply only a small fraction of the construction industry’s workforce. ABC, our 69 chapters and 21,000-plus members will continue to utilize an all-of-the-above education approach to ensure our workforce meets the highest standards for safety and quality craftsmanship, which has been and will remain our top priority. ABC members invested $1.6 billion to educate their employees in 2018, up from $1.1 billion in 2013, according to the results of ABC’s 2019 Workforce Development Survey. The 45% increase in spending resulted in nearly twice as many course attendees—more than 980,000—receiving craft, leadership and safety education to advance their careers in commercial and industrial construction.”

During the IRAP rulemaking, ABC also argued that while registered apprenticeship programs are an important part of an all-of-the-above workforce development strategy needed to meet the construction industry’s demand for skilled labor, most upskilling in the construction industry occurs outside of government-registered apprenticeship programs. In fact, according to U.S. DOL data, in 2020, just 20,164 construction industry apprentices completed apprenticeship programs registered with the department.

In addition to discussing IRAPs in the White House fact sheet, President Biden expressed his support for the House-passed and ABC-opposed National Apprenticeship Act of 2021. ABC argued the bill would not achieve its goal of expanding apprenticeship opportunities, as it would further restrict small businesses’ ability to access federally registered apprenticeship programs, limit job opportunities in the construction industry and create additional obstacles for the construction industry to meet future workforce demand and needs. ABC sent out an action alert and key voted against the apprenticeship bill, which passed by a vote of 247-173 on Feb. 5 with 28 Republicans voting to support.

ABC supported an amendment to the bill introduced and made in order by Rep. French Hill (R-Ark.) that would eliminate a requirement in the bill for entities to partner with labor or joint labor organizations to be eligible for grant funding under a new apprenticeship grant program. The amendment unfortunately failed by a vote of 186-236, with 2 Democrats voting for and 19 Republicans voting against.

ABC will engage with the Senate on the National Apprenticeship Act and will continue to advocate for an all-of-the-above workforce development strategy, including industry-driven and government-registered apprenticeship programs, so workers and employers have freedom to choose the best way to provide value and help rebuild America.

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On Feb. 24, ABC submitted a letter for the record to the U.S. Senate Committee on Environment and Public Works for its hearing, “Building Back Better: Investing in Transportation While Addressing Climate Change, Improving Equity and Fostering Economic Growth and Innovation,” to urge the committee to consider policies that will increase competition, reduce costly and ineffective regulations and address the construction industry’s skilled worker shortage.

In the letter, ABC highlighted the ABC-supported Fair and Open Competition Act, which was introduced by Sen. Todd Young (R-Ind.) and Rep. Ted Budd (R-N.C.) on Feb 24, as a policy that would allow all qualified construction companies to compete for federal and federally funded construction projects while providing value for hardworking taxpayers, benefiting the entire construction industry.

ABC underscored its concerns over the harmful effects that the ABC-opposed National Apprenticeship Act (H.R. 447) would have on apprenticeship opportunities for millions of Americans, which would exacerbate workforce development challenges, should a significant infrastructure package be passed. Additionally, ABC strongly urged Congress to steer away from policies such as the Protecting the Right to Organize (PRO) Act, which would limit the opportunities for small businesses to compete on infrastructure projects.

The hearing comes as the details of President Joe Biden’s $2 trillion Build Back Better Plan have been put on hold as Congress continues to consider the COVID-19 relief package. ABC will continue to provide updates in Newsline.

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In a concerning development for the merit shop contracting community and hardworking taxpayers, the U.S. Department of Transportation is encouraging the use of government-mandated project labor agreements on federally assisted construction projects funded through a grant program administered by the DOT’s Build America Bureau.

On Feb. 17, the DOT announced it is seeking applicants for the FY 2021 round of the Infrastructure for Rebuilding America (INFRA) discretionary grant program, providing $889 million to fund transportation projects of national and regional significance.

The U.S. DOT has changed its fiscal year 2021 INFRA Notice of Funding Opportunity to reflect the Biden administration’s “priorities around creating good-paying jobs, ensuring safety, advancing racial equity, addressing climate change and building innovative, transformative projects.”

According to the FY2021 INFRA program’s NOFO, the DOT is evaluating applications containing the inclusion of plans “related to project labor agreements and inclusive local participation goals” favorably “to the extent permitted by federal law and DOT regulations.”

“The DOT’s abrupt policy shift in support of government-mandated project labor agreements on INFRA grants is troubling and may undermine the administration’s laudable priorities at a time when small, minority and women-owned businesses and their diverse workforces seek opportunities to rebuild their communities and recover from the COVID-19 pandemic,” said ABC Vice President of Regulatory, Labor and State Affairs Ben Brubeck. “The truth is, government-mandated project labor agreements increase construction costs by 12% to 20%, discourage experienced contractors and their qualified workforce from competing to build transformational taxpayer-funded projects and deny good-paying jobs to the more than 87% of the U.S. construction industry workers who chose not to affiliate with unions.”

In a Feb. 4 letter to President Joe Biden, ABC expressed concerns about government-mandated PLAs and the “expansion of existing policies that needlessly limit competition and increase costs on taxpayer-funded federal and federally assisted construction projects.”

“As the construction industry faces a 9.4% unemployment rate due to the recession caused by COVID-19 and America’s infrastructure remains critically underfunded, we need to be doing all we can to maximize taxpayer investments in infrastructure while helping all construction workers find quality jobs to rebuild their communities,” according to the letter.

The change to the DOT’s 2021 NOFO is not a blanket PLA mandate on INFRA-funded projects procured by state and local stakeholders, but it demonstrates the first expansion of DOT and Biden administration policies promoting the use of controversial government-mandated PLAs.

Of note, DOT’s Federal Highway Administration is already in the practice of evaluating and approving PLAs mandated by state and local governments for FHWA-funded construction projects.

According to 2021 Federal Highway Administration data, state and local lawmakers mandated PLAs on 513 state and local construction projects (totaling an estimated $12.88 billion) that received federal assistance and formal approval from the FHWA from May 2010 through Dec. 22, 2020.

ABC will continue its fight against government-mandated PLAs on federal, state and local taxpayer-funded construction projects because taxpayers deserve more efficient and effective policies that will encourage all qualified contractors and their skilled workforce to compete to build long-lasting, quality projects at the best price.

FY 2021 INFRA applications must be submitted by March 19, 2021, through grants.gov.

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