Category: News Line

On March 11, a federal judge dismissed a lawsuit by the Arizona State Building and Construction Trades Council that aimed to block enforcement of parts of a pro-taxpayer Arizona law restricting government-mandated project labor agreements. 

According to court documents, the trades council filed the lawsuit in response to two statutory provisions enacted in 2011 and 2015 that prohibit political subdivisions of the state from requiring bidders for public contracts to enter into PLAs or participate in apprenticeship programs. In their lawsuit, the trades council stated the provisions are pre-empted by various federal laws, including the National Labor Relations Act and the Fitzgerald Act.  

However, U.S. District Judge Roslyn O. Silver with the U.S. District Court for the District of Arizona ruled the suit lacks standing because the trades council has not identified any concrete injury it has suffered or is about to suffer as the result of these provisions, according to court documents. 

The judge also dismissed the case for its violation of the 11th Amendment, which bars suits in federal court against states and state officials.

“This ruling solidifies Arizona’s pro-taxpayer law ensuring fair and open competition public works projects,” said ABC Vice President of Legal, Regulatory and State Affairs Ben Brubeck. “A total of 24 states have passed similar measures restricting government-mandated project labor agreements and all legal challenges by PLA advocates to such state measures have ultimately failed.”

In a December 2018 membership survey, ABC found its members strongly oppose government-mandated PLAs on taxpayer-funded construction contracts and said a construction contract that required a PLA would be more expensive and result in poor local hiring outcomes compared to a contract procured via free and open competition.

Additionally, ABC and industry groups have repeatedly asked President Trump to rescind President Obama’s Executive Order 13502, which allows state and local recipients of federal dollars to mandate PLAs on public works projects and encourages federal agencies to require PLAs on federal contracts to build projects of $25 million or more on a case-by-case basis.

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ABC sent a letter of support to Congress urging passage of the Workforce for an Expanding Economy Act (H.R. 1740) introduced by Rep. Lloyd Smucker (R-Pa.). The bill would create a new visa program for non-farm, temporary foreign workers and includes important protections for employers and employees, ensuring that jobs remain available for hardworking Americans.

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From interviews to editorials and many articles in between, Women in Construction Week, March 3-9,  showcased the voices of women from all areas of the construction industry. Here are just a few of the highlights:

• Kicking off the week, Kim Roy, CEO of ABC member company HITT Contracting, was interviewed on Yahoo! Finance’s “On the Move” to highlight Women in Construction Week. 
• Michele Daugherty, CEO of ABC Northern California, published an editorial in the Sacramento Business Journal highlighting the need for more women in the industry.
• Tony Rader, vice president of National Roofing Partners and ABC’s 2019 National Chair, was quoted in ForConstructionPros.com the importance of hiring women in the industry.
• ABC Metro Washington, in partnership with Rebuilding Together Montgomery County, hosted a She Builds event on March 8, 2019, which was also International Women’s Day. More than 40 women volunteers spent the day making much needed repairs to the home of a Takoma Park, Maryland, resident so she could safety age in place. 

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On March 8, H.R. 1, the For the People Act, passed the Democratic-controlled U.S. House of Representatives by a party line vote of 234-193. ABC sent a letter in opposition to the legislation, arguing that it is an attack on free speech and would cripple the business structure of nonprofit associations such as ABC. 

The outlook of H.R. 1 is unclear as U.S. Senate Majority Leader Mitch McConnell (R-Ky.) has stated that the Senate will not take up the bill. Accompanied by opposition from the White House, this will almost certainly stop any momentum the bill gained from passing in the lower chamber of Congress. 

ABC considered the House vote to be a key vote for its scorecard on the 116th Congress. 

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Following the Commonwealth Court of Pennsylvania’s Jan. 11 decision to strike down the state Department of Transportation’s project labor agreement mandate for the Markley Street reconstruction project, PennDOT withdrew their appeal of the decision on March 7.

In August 2017, PennDOT issued a solicitation that contained a PLA requirement on the second phase of the Markley Street project, which would have required bidders to hire from designated union halls rather than use their own employees.

After public opposition to the requirement and PennDOT issuing a revised PLA mandate in December 2017, ABC members Allan Myers and J.D. Eckman Inc. filed suit, challenging PennDOT’s demonstration of discriminatory bidding practices.  

Nearly two years after the suit was filed, the Commonwealth Court ruled that PennDOT’s PLA mandate violated the state’s competitive bidding laws and discriminated against nonunion contractors, resulting in a victory for Allan Myers and J.D. Eckman and merit shop contractors throughout Pennsylvania.

PennDOT filed an appeal with the Pennsylvania Supreme Court in mid-February but shortly withdrew their appeal less than one month after filing. PennDOT did not release a statement on their decision not to seek an appeal. 

PLA mandates discriminate against the 86 percent of private-sector construction workers nationwide who choose not to join a union. In Pennsylvania, just 21.7 percent of the construction workforce is unionized. Research has also found PLA mandates can increase construction costs by 12 percent to 18 percent, resulting in fewer infrastructure projects and reduced construction industry job creation.

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On March 8, the Office of Federal Contract Compliance Programs announced the launch of the new Section 503 Focused Review Landing Page, which is intended to provide contractors with helpful information and assistance in implementing best practices and increasing the employment of individuals with disabilities. According to the agency, the project is intended to further its commitment to strengthening the partnership between OFCCP and the federal contractors they assist.

Through the landing page, the OFCCP also issued Frequently Asked Questions to address what contractors can expect during a Section 503 focused review. The FAQs have been highly-anticipated since the OFCCP issued Directive 2018-04 on Aug. 10, 2018, putting contractors on notice that it was preparing to implement focused reviews of contractors’ compliance with Executive Order 11246, Section 503 of the Rehabilitation Act of 1973 and the Vietnam Era Veterans’ Readjustment Act of 1974.
 
In addition to the FAQs, the landing page includes resources like fact sheets, videos, best practices and contact information to assist federal contractors with compliance.

For more details on the Section 503 focused review FAQs, see ABC General Counsel Littler Mendelson’s analysis. To view additional resources related to Section 503 focused reviews, see the OFCCP’s landing page. 

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On March 7, the U.S. Department of Labor unveiled its long-awaited proposal to update and revise the “white collar” overtime exemption regulations under the Fair Labor Standards Act, which DOL estimates will make more than one million new workers eligible for overtime pay. 

The Department is proposing to raise the current minimum salary for exemption from $455 per week ($23,660 annualized) to $679 per week ($35,308 annualized). Additionally, the proposal increases the total annual compensation requirement for “highly compensated employees” to $147,414 per year.   While DOL’s new proposal does not include automatic increases to the minimum salary level or the highly compensated test, the agency has asked for comments on whether these tests should be proposed to be updated every four years through notice-and-comment rulemaking.

If finalized, the proposal would replace the 2016 final rule issued by the DOL under the Obama Administration, which would have increased the minimum salary level for exemption to $913 per week ($47,476 annualized). ABC, along with several other business groups, sued DOL in federal court in September 2016 and succeeded in blocking the final rule from taking effect. 

ABC welcomes the long-awaited proposal and is pleased that it addresses many of the concerns that ABC expressed in comments submitted to the department’s 2017 request for information and a statement at DOL’s overtime listening session, including retaining the 2004 standard salary test, adopting only one standard salary level and not imposing automatic indexing of the salary level test. ABC hopes that the DOL will move swiftly to finalize this proposal. 

DOL is soliciting public feedback on the proposal, and ABC plans to submit comments. Comments will be due 60 days upon publication in the Federal Register. 

See the following resources for more information on DOL’s new overtime proposal:

• DOL Overtime Notice of Proposed Rulemaking
• DOL Overtime Proposal Press Release
• DOL Overtime Proposal Fact Sheet
• DOL Overtime Proposal Frequently Asked Questions
• ABC General Counsel Littler Mendelson’s analysis

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ABC is hosting the upcoming webinar, “Understanding the Impact of OFCCP’s Recent Policy Changes on Federal Contractors” at 2 p.m. EST on Tuesday, March 19.  

Lance Gibbons, Shareholder at Littler Mendelson P.C., will lead the webinar and discuss recent activity at the Office of Federal Contract Compliance Programs and what federal contractors need to know. Topics include:

• New compensation analysis directive
• Proposed revisions to the procedures for requesting and maintaining a Functional Affirmative Action Program
• The Voluntary Enterprise-wide Review Program
• Updated compliance review procedures
• New early resolution procedures
• Opinion letters and help desk directive
• Corporate scheduling announcement letters
• Other significant regulatory actions

ABC members can register here.

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On Feb. 28, the U.S. Senate voted to confirm Andrew Wheeler as administrator of the U.S. Environmental Protection Agency by a vote of 52 to 47. ABC sent a letter to senators in support of Wheeler’s confirmation based on his work as the acting administrator of the EPA to promote an effective environmental permitting process for construction projects, his proposal of a new Waters of the United States rule and his efforts to repeal and replace the Obama administration’s Clean Power Plan with the Affordable Clean Energy Plan. Wheeler becomes the second EPA administrator under President Trump, seven months after his predecessor Scott Pruitt resigned in July.

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ABC’s vice president of regulatory, labor and state affairs did a radio tour last week during the annual Conservation Political Action Conference. Speaking with The Epoch Times from the convention floor, he discussed the advantages of a career in the construction trades. Brubeck also discussed project labor agreements and prevailing wage issues in four additional interviews.

On CPAC’s radio row, Brubeck also spoke with:

• The Epoch Times, “Why Trade School is a Better Bet”
• Jeff Katz with WRVA 1140 a.m., “Live from D.C. with Ben Brubeck”
• WRFH/Radio Free Hillsdale, “CPAC: 2019: Ben Brubeck” 
• The Chad Adam’s Show, “Interview with Ben Brubeck” (interview starts at 2:08:45)
• The LangerCast, “168: CPAC 2019 Day 2” (interview starts at 18:00)

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