Category: News Line

Effective Sept. 30, the U.S. Department of Labor’s Occupational Safety and Health Administration will begin enforcement of the ancillary requirements of its standards for occupational exposure to beryllium and beryllium compounds in the construction and shipyard sectors.

According to an OSHA memorandum, the agency will assist employers that are making good faith efforts to meet the ancillary requirements of the revised final Beryllium construction and shipyard standards during the first 45 days of enforcement. Additionally, proposed citations related to inspections conducted within the 45-day timeframe will require National Office review prior to issuance. However, this good faith policy does not apply to compliance with the eight-hour permissible exposure limit and short-term (15-minute) exposure limit in the 2017 final rule issued at the end of the Obama administration.

More information on the beryllium standards for the construction and shipyard sectors can be found on the OSHA website.

As part of the Construction Industry Safety Coalition, ABC has been heavily involved in OSHA’s rulemaking efforts over the last several years in an attempt to limit the application of the original rule within the construction industry. In addition to submitting comment letters throughout various rulemakings, ABC, along with the National Association of Home Builders and the Mason Contractors Association of America, filed a settlement with OSHA on Aug. 25 to effectively narrow the scope of the 2017 beryllium final rule.

Read more about ABC’s actions in the beryllium regulatory pr

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On Sept. 28, ABC submitted comments to the National Labor Relations Board on its proposed rule amending the agency’s representation election regulations under the National Labor Relations Act. Additionally, the ABC-led Coalition for a Democratic Workplace submitted comments in support of the NLRB’s proposal, officially titled Representation-Case Procedures: Voter List Contact Information; Absentee Ballots for Employees on Military Leave.

According to an NLRB news release, the proposed amendments include eliminating the requirement for employers to provide available personal email addresses and home and personal cellular telephone numbers of all eligible voters to the regional director and other parties during an election campaign and providing absentee ballots for employees who are on military leave.

In its comments, ABC expressed support for the long-overdue change to the NLRB’s required disclosure of personal email addresses and phone numbers of eligible voters. Further, ABC members have found the current voter eligibility list requirements to be unduly burdensome for employers, intrusive into employee privacy and an infringement on the rights of employers and employees to a fair preelection process.

Additionally, ABC expressed its support for the agency’s amendment to provide absentee mail ballots for employees on military leave, provided that employers are not subjected to additional burdens posed by the potential logistical challenges.

ABC’s general counsel, Littler Mendelson P.C., published an analysis with more information on the NLRB proposal.

ABC will continue to keep members informed of any developments about this rulemaking in Newsline.

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On Sept. 22 and 23, the U.S. Senate voted to confirm Andrea Lucas (R), Jocelyn Samuels (D) and Keith Sonderling (R) to serve as commissioners of the U.S. Equal Employment Opportunity Commission.

Prior to her confirmation, Lucas, who was confirmed by a Senate vote of 49-44, practiced in the Washington, D.C., office of Gibson, Dunn & Crutcher LLP in the firm’s labor and employment group for almost a decade, where she represented clients before the EEOC, other administrative agencies and federal and state courts nationwide in a wide variety of employment-related disputes. Additionally, Lucas served as a law clerk to Judge James C. Cacheris of the U.S. District Court for the Eastern District of Virginia. She will serve on the EEOC for a term expiring on July 1, 2025.

Samuels, who was confirmed by a Senate vote of 54-42, served as the executive director at the Roberta A. Conroy Scholar of Law and Policy at the Williams Institute at the University of California, Los Angeles School of Law. Previously, Samuels served multiple roles within the federal government, including director of the Office for Civil Rights at the U.S. Department of Health and Human Services and as a political appointee at the Civil Rights Division of the U.S. Department of Justice. She will serve on the EEOC for a term expiring on July 1, 2021.

Sonderling, who was confirmed by a Senate vote of 52-41, served as both a deputy administrator and acting administrator of the U.S. Department of Labor’s Wage and Hour Division. Before serving at DOL, Sonderling practiced labor and employment law at the Gunster Law Firm in West Palm Beach, Florida. He will serve on the EEOC for a term expiring on July 1, 2024.

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On Sept. 22, Bernalillo County’s board of commissioners passed an ordinance requiring a community workforce agreement, also known as a project labor agreement, on all construction projects performed for the county that are valued at more than $7 million. The threshold was originally set at $5 million, but was raised to $7 million after a 30-day comment period following the introduction of the ordinance in August.

The result makes Bernalillo County the second local government in New Mexico to require a CWA on public projects in the last decade. The previous instance occurred in Santa Fe in 2012, where city commissioners adopted a CWA ordinance that was rescinded a year later after pressure from local contractors concerning the discriminatory nature of the CWA, which excluded more than 90% of New Mexico contractors from working on projects in the city.

ABC’s New Mexico Chapter vocally opposed this CWA ordinance and will continue to advocate for its repeal.

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On Sept. 22, U.S. Rep. Garrett Graves (R-La.) introduced H.R. 8333, the Building U.S. Infrastructure Through Limited Delays & Efficient Reviews (BUILDER) Act. The legislation would codify much of the Council on Environmental Quality’s National Environmental Policy Act rulemaking, which ABC supports. Developed with input from the House Transportation and Infrastructure, Energy and Commerce and Judiciary committees, the bill includes important provisions to create a more efficient NEPA review process and clarifies which projects require NEPA review. This will promote better agency coordination and set reasonable time limits for preparing environmental documents.

Following the release of the BUILDER Act, ABC Vice President of Legislative & Political Affairs Kristen Swearingen issued the following statement:

“ABC applauds congressional leaders for introducing this legislation, which will go a long way toward eliminating unnecessary delays that cause budget overruns in construction. Construction businesses recovering from the ongoing health and economic crisis caused by COVID-19 will surely benefit from these modifications, which will help reduce costs and speed up project approvals so that hardworking U.S. workers can get back on the job quickly and safely.

“The coordinated, predictable and transparent process to streamline permitting will also enable the industry to plan and execute even the most complex projects while safeguarding our communities, maintaining a healthy environment and being good stewards of public funds.”

ABC is a member of the Unlock American Investment Coalition, which focuses on modernizing NEPA and unlocking American investment in modern, efficient infrastructure, creating middle-class sustaining jobs while advancing good environmental stewardship. To learn more, see the coalition’s fact sheet on modernizing NEPA.

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On Sept. 22, the U.S. Department of Labor announced a proposed rule that would revise its interpretation of independent contractor status under the Fair Labor Standards Act. The DOL indicates the proposal would offer clarity to determine whether a worker is an employee under the FLSA as well as promote certainty for stakeholders, reduce litigation and encourage innovation in the economy.

According to the DOL press release, the proposal would:

• Adopt an “economic reality” test to determine a worker’s status as an employee or an independent contractor under FLSA. The test considers whether a worker is in business for themselves (independent contractor) or is economically dependent on a putative employer for work (employee);  
• Identify and explain two “core factors,” specifically: the nature and degree of the worker’s control over the work and the worker’s opportunity for profit or loss based on initiative and/or investment. These factors help determine if a worker is economically dependent on someone else’s business or is in business for themselves;
• Identify three other factors that may serve as additional guideposts in the analysis, including: the amount of skill required for the work; the degree of permanence of the working relationship between the worker and the potential employer; and whether the work is part of an integrated unit of production; and
• Advise that the actual practice is more relevant than what may be contractually or theoretically possible in determining whether a worker is an employee or an independent contractor.

To learn more about the proposed rule, see ABC general counsel’s analysis, “DOL Releases Proposed Regulation on Independent Contracting.”

The proposal is expected to be published in the Federal Register by the end of the week. The public will then have 30 days to comment. ABC National plans to submit a comment letter.

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On Thursday, Sept. 24, ABC will continue its Election Briefing Series with a national update from the National Republican Congressional Committee. It will be followed by a Mountain West and Pacific region election update on Thursday, Oct. 8, and a national update from the National Republican Senatorial Committee on Thursday, Oct. 22.

Registration is now open for all of these upcoming events, so make sure to register today.

These updates are a part of the ABC Election Update Series, which is powered by the Free Enterprise Alliance. It is reserved for ABC members and registration is free of charge thanks to our generous sponsors.

Please contact Melanie Pfeiffenberger, ABC National director of political affairs, for more information at pfeiffenberger@abc.org.

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On Sept. 14, 2020, in a 2-1 ruling, the 9^th U.S. Circuit Court of Appeals reversed and vacated a U.S. District Court’s preliminary injunction in 2018 that barred the Department of Homeland Security from implementing or enforcing its determinations to terminate Temporary Protected Status for Sudan, Nicaragua, Haiti and El Salvador while the case continued its way through the legal system.

The 9^th  Circuit’s ruling determined that the Trump administration’s decision to phase out TPS was not reviewable under the Administrative Procedures Act and that the plaintiffs failed to show a likelihood of success, or even serious questions, on the merits of their Equal Protection claim—in essence, paving the pathway for termination of TPS for those countries while a lawsuit on the merits of the termination proceeds.

ABC has continued to urge Congress to take legislative action to ensure that TPS holders can continue to work legally in this country. ABC and other construction industry leaders have expressed concerns about ending TPS designations in a 2017 letter and a 2018 letter to congressional leaders.

As a member of the Essential Worker Immigration Coalition, ABC supports the advancement of business-centric, balanced immigration reform to meet the needs of the American workforce and job creation. EWIC issued a statement on the Sept. 14 ruling that reiterated the coalition’s support for a legislative solution that provides a more permanent lawful status for immigrant workers, as many of those in TPS and DACA are contributing to our national economy, our communities and our industries.

TPS Background

Under the Immigration Act of 1990, the secretary of Homeland Security has authority to extend TPS protections to eligible foreign-born individuals if there is a crisis in their home country that prevents them from returning home, such as an armed conflict or environmental disaster. Designations are made for periods of six to 18 months and can be extended by the secretary after a review of the country’s conditions.

When a country is designated for TPS, foreign nationals from those countries who are in the United States when the designation is granted must apply and pay significant fees in order to be eligible to receive a temporary stay of deportation and temporary work authorization while their home country maintains its TPS designation. According to the Congressional Research Service, the United States currently provides TPS to approximately 411,000 foreign nationals from 10 countries: El Salvador, Haiti, Honduras, Nepal, Nicaragua, Somalia, South Sudan, Sudan, Syria and Yemen.

From September 2017 through May 2018, DHS announced the termination of TPS designations for Sudan, Nicaragua, Haiti and El Salvador. However, in a federal challenge, Ramos v. Nielsen, plaintiffs argued that the agency’s decisions violated the Administrative Procedures Act and their constitutional right to equal protection; a U.S. District Court enjoined DHS from implementing or enforcing the termination plans pending a final resolution of the case on the merits. As part of that injunction, TPS designations for these countries and thereby protections for beneficiaries were automatically extended through Jan. 2, 2020. To ensure its continued compliance with the preliminary injunction, DHS issued a subsequent notice automatically extending the TPS designations for Sudan, Nicaragua, Haiti and El Salvador through Jan. 4, 2021.

The Ruling’s Impact on the Construction Industry

The four countries subject to the 9^th  Circuit’s decision make up a supermajority of the TPS population in the United States—386,871—and their labor force participation rate tends to range from 81%—88%. According to a report in the Journal on Migration and Human Security, the construction industry employs 51,700 TPS beneficiaries from El Salvador, Honduras and Haiti—the largest percentage of any industry.

While the loss of so many construction workers would be harmful for the industry, it is important to note that TPS beneficiaries from the four countries will not see an immediate impact to their status or work authorization. Not including the additional time for the plaintiff-appellees to seek additional court review, TPS benefits will remain in place for at least 120 days following notice from the U.S. Citizenship and Immigration Services that the transition period has begun. Due to a bilateral agreement signed between the United States and El Salvador, TPS benefits for Salvadorans will remain in place for 365 days. Meanwhile, TPS benefits for Haiti will remain in place until further notice, pursuant to a preliminary injunction issued in a separate case, Saget v. Trump.

What’s Next

Ahilan Arulanantham at the American Civil Liberties Union of San Diego, who argued the case in court, said the ACLU plans to ask a full panel of 9^th  Circuit judges to review the case, which would likely result in further extension of TPS benefits for these four countries. The case is also likely to be eventually sent to the U.S. Supreme Court, which could further delay the outcome. This also means that any final determination on the status of TPS will be overseen by whichever party wins the November presidential election—Former Vice President Joe Biden has said that he intends to retain the program if he is elected president in November.

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ABC’s Chief Economist Anirban Basu reports on the construction backlog indicator which rose in August, according to an ABC analysis of data published by the U.S. Census Bureau. Confidence among U.S. construction industry leaders also rose in August regarding sales, staffing levels and profit margins, according to ABC’s Construction Confidence Index. 

To learn more visit abc.org/economics.

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On Sept. 11, the U.S. Department of Labor’s Wage and Hour Division issued revisions to the Families First Coronavirus Response Act regulations, which implement paid sick leave and expanded family and medical leave. FFCRA requires private-sector employers with fewer than 500 employees and certain public employers to provide covered employees emergency paid sick leave and expanded family and medical leave. The FFCRA’s paid leave provisions went into effect on April 1, 2020, and apply to leave taken between April 1, 2020, and Dec. 31, 2020.

The revisions clarify workers’ rights and employers’ responsibilities under the FFCRA’s paid leave provisions after an  Aug. 3 decision from the U.S. District Court for the Southern District of New York nullified key sections of the regulations.

According to a DOL press release, the revisions to the temporary rule do the following:

• Reaffirm and provide additional explanation for the requirement that employees may take FFCRA leave only if work would otherwise be available to them.
• Reaffirm and provide additional explanation for the requirement that an employee have employer approval to take FFCRA leave intermittently.
• Revise the definition of “healthcare provider” to include only employees who meet the definition of that term under the Family and Medical Leave Act regulations or who are employed to provide diagnostic services, preventative services, treatment services or other services that are integrated with and necessary to the provision of patient care which, if not provided, would adversely impact patient care.
• Clarify that employees must provide required documentation supporting their need for FFCRA leave to their employers as soon as practicable.
• Correct an inconsistency regarding when employees may be required to provide notice of a need to take expanded family and medical leave to their employers.

The revisions to the temporary rule will be effective from Sept. 16, 2020, through the expiration of the FFCRA’s paid leave provisions on Dec. 31, 2020.

FFCRA FAQs are available here.

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