The Biden administration continues to roll back Trump-era initiatives and institute new, pro-union policies that challenge our members’ ability to win work. ABC fought against these proposed rules and regulations affecting merit shop contractors and advocated for open competition and free enterprise.
U.S. Department of Labor
Wage and Hour Division
ABC Opposition to Davis-Bacon Expansion Proposed Rule
On March 18, 2022, the DOL’s Wage and Hour Division issued a proposed rule that would “modernize” the Davis-Bacon Act and related regulations. These outdated regulations require the DOL to set “prevailing wages” for federal and federally assisted construction contracts over $2,000, needlessly raising construction project costs, stifling contractor productivity and discouraging competition from small businesses interested in pursuing these projects.
Despite the rule’s stated purpose, it would instead reverse course by undoing Reagan administration reforms, making union rates more likely to be adopted as prevailing wages, and expanding prevailing wage requirements to cover certain prefabrication work, transportation and flaggers, among other concerns. ABC’s 60-day extension request for public comment was denied by the DOL.
ABC surveyed contractor members to gather insight on the potentially harmful impacts of this proposal and a 70-page comment letter was filed on May 17. The letter detailed ABC’s opposition and provided feedback on many of the more than 50 significant changes in the proposed rule.
On Dec. 16, the DOL sent its final rule updating Davis-Bacon and Related Acts prevailing wage regulations to the Office of Information and Regulatory Affairs at the Office of Management and Budget for review. The review at the OIRA is usually the final step in the process before a rule is officially published in the Federal Register. As of this writing, the rule is still pending at the OIRA.
ABC Opposition to New Independent Contractor Proposed Rule
In January 2021, the DOL under President Donald Trump issued an independent contractor final rule under the Fair Labor Standards Act, which ABC strongly supported. Soon after, the DOL under President Joe Biden issued a proposed rule to withdraw the final rule and ABC submitted comments opposing it. On March 26, ABC, the ABC Southeast Texas Chapter and the Coalition for Workforce Innovation filed suit against the DOL. In May, the DOL rescinded the final rule.
On March 15, 2022, the U.S. District Court for the Eastern District of Texas dealt a blow to the Biden administration’s efforts to delay and rescind the Trump administration’s 2021 independent contractor final rule in that case. Under a decision applauded by ABC, the ABC-supported rule went into effect as scheduled on March 8, 2021, and remains in effect today.
On Oct. 11, the DOL announced a new proposed rule to rescind and replace the ABC-supported 2021 final rule on independent contractors.
On Oct. 19, ABC urged the DOL to extend the Nov. 28 comment period deadline by 60 days, stating, “ABC represents a large number of contractors and subcontractors who will be significantly impacted by this new proposed rule. Due to the complexity of the issues included in the 58-page proposal, the current 45-day comment period does not allow sufficient time for ABC to fully analyze the rulemaking as well as effectively communicate the broad scope of issues with its members before providing comments.”
On Oct. 25, the DOL announced an extension of the comment deadline on the proposed rule from Nov. 28 to Dec. 13.
On Nov. 9, ABC participated in the U.S. Small Business Administration’s Office of Advocacy virtual roundtable on the proposed rule.
ABC expressed its opposition to the proposed rule and submitted comments on Dec. 13. ABC encouraged members to help push back against the DOL’s harmful proposal by submitting to the DOL a pre-generated comment opposing the proposed rule, which was sent out through ABC’s Action app. According to the fall 2022 regulatory agenda, DOL is expected to issue a final rule in May 2023.
ABC continues to emphasize the importance of independent contractors and warns that any effort by the DOL to undermine that status will likely be challenged by the coalition of which ABC is a part. Read more.
ABC Urges DOL to Withdraw Rule on Nondisplacement of Qualified Workers Under Service Contracts
On Aug. 15, 2022, ABC submitted comments to the DOL identifying a number of concerns with its proposed rule on Nondisplacement of Qualified Workers Under Service Contracts, which would implement Executive Order 14055.
Issued on Nov. 18, 2021, by President Biden, the EO requires that federal agencies include a clause about nondisplacement of workers in solicitations and contracts for projects covered by the McNamara-O’Hara Service Contract Act of 1965. The required clause states that successor contractors and subcontractors who win a bid for covered work must offer qualified employees employed under the predecessor contract a right of first refusal of employment under the successor contract.
According to the fall 2022 regulatory agenda, OSHA intended to analyze the comments from the NPRM through December 2022. Read more.
Occupational Safety and Health Administration
ABC Urges OSHA to Withdraw Its Improved Tracking of Workplace Injuries and Illness Proposal
On March 30, 2022, OSHA issued proposed amendments to the Improve Tracking of Workplace Injuries and Illnesses rule (or Electronic Injury Reporting), which would require covered establishments with 100 or more employees in certain high-hazard industries—including construction—to electronically submit information from their OSHA Forms 300, 301 and 300A to OSHA annually. In addition, the DOL plans to share the information on a public website (although indicating it will remove individuals’ names and contact information).
On June 30, ABC submitted comments to OSHA and urged the agency to withdraw the harmful rule.
This rule was first issued under the Obama administration, and ABC filed a lawsuit against it. In 2019, the Trump-era DOL issued a new final rule, which eliminated the some of the burdensome Obama-era requirements.
According to the fall 2022 regulatory agenda, the DOL is expected to issue a final rule in March 2023. Read more.
ABC Opposes OSHA’s Proposal to Include Construction Industry in Final Rule on COVID-19 in Health Care Settings
On April 22, 2022, ABC, as a steering committee member of the Construction Industry Safety Coalition, submitted comments in response to OSHA’s request for additional comment on its “potential provisions or approaches” to a final Occupational Exposure to COVID-19 in Healthcare Settings rule. CISC opposes OSHA’s proposal to expand coverage under any promulgated final rule and include certain construction work in health care settings.
ABC also submitted comments on April 22 as a steering committee member of the Coalition for Workplace Safety. The CWS believes unequivocally that OSHA is not permitted to, and must not, issue a permanent standard after having withdrawn the health care emergency temporary standard in December 2021.
In December, the DOL sent its final rule on Occupational Exposure to COVID-19 in Healthcare Settings to the OIRA at the OMB for review. The review at the OIRA is usually the final step in the process before a rule is officially published in the Federal Register. As of this writing, the rule is still pending at the OIRA. Read more.
ABC Voices Concerns to OSHA About Powered Industrial Trucks Design Standard Update
On May 17, 2022, ABC, as a steering committee member of the Construction Industry Safety Coalition, submitted comments to OSHA voicing compliance and cost concerns on the proposed rule on Powered Industrial Trucks Design Standard Update. While CISC members are not manufacturers of powered industrial trucks, certain types of PITs are frequently used on construction worksites and, thus, CISC members are interested in this proposal.
According to the fall 2022 regulatory agenda, OSHA intended to analyze the comments from the NPRM through December 2022. Read more.
Office of Labor-Management Standards
ABC Submits Comments Opposing Revision to LM-10 Employer Report Form
On Oct. 13, 2022, ABC submitted a comment letter to the DOL’s Office of Labor-Management Standards regarding its proposed revisions to the LM-10 Employer Report form. Employers must file this form with the OLMS to disclose certain payments, expenditures, agreements and arrangements, including the hiring of outside labor relations consultants to help inform their employees regarding union organizing or collective bargaining, known as “persuader activities.”
ABC opposed the new proposed revision, which would add a checkbox to the form for employers to disclose whether they are a federal contractor, as well as identifying information and the federal agency or agencies contracted for.
According to the fall 2022 regulatory agenda, DOL intended to issue a final rule in February 2023. Read more.
Federal Acquisition Regulatory Council
ABC Calls on President Biden to Withdraw His Inflationary PLA Mandate Policies
On Feb. 4, 2022, President Biden signed Executive Order 14063, Use of Project Labor Agreements for Federal Construction Projects. Once implemented, federal agencies will require that every prime contractor and subcontractor on a federal construction project of $35 million or more performed within the United States to sign a PLA as a condition of winning a contract.
On Aug. 19, the Federal Acquisition Regulatory Council published a proposed rule requiring federal construction contracts of $35 million or more to be subjected to PLAs, in accordance with EO 14063.
ABC slammed the order and proposed rule, saying:
“This anti-competitive and costly executive order rewards well-connected special interests at the expense of hardworking taxpayers and small businesses who benefit from fair and open competition on taxpayer-funded construction projects.”
An ABC-led coalition sent a Feb. 15 letter to the White House and a Feb. 28 letter to Congress highlighting concerns with President Biden’s efforts to require controversial government-mandated PLAs on federal and federally assisted construction contracts.
On Oct. 18, ABC submitted more than 40 pages of comments to the FAR calling on the Biden administration to withdraw the proposed rule. In addition, more than 50 members of Congress, 19 governors and 22 construction industry anti-PLA coalition members submitted comments to the FAR Council opposing the rule.
ABC has activated a grassroots campaign urging members of the U.S. House of Representatives and U.S. Senate to co-sponsor the Fair and Open Competition Act (H.R. 1209/S. 537), which would prevent the federal government from mandating PLAs as a condition of winning federal or federally assisted construction contracts. It has received 79 co-sponsors in the House and 23 in the Senate in the 118th Congress so far. ABC members are encouraged to visit the ABC Action Center and urge their members of Congress to support FOCA.
According to the fall 2022 regulatory agenda, FAR expected to issue a final rule in March 2023 but is now unlikely to issue the rule before late April at the earliest.
ABC Opposes Proposed Greenhouse Gas Emissions Disclosures and Reductions Mandate
On Nov. 14, 2022, the Federal Acquisition Regulatory Council issued a proposed rule to amend the Federal Acquisition Regulation to require certain federal contractors to disclose their greenhouse gas emissions and set GHG emission reduction targets.
Under the proposed rule, federal contractors who qualify as significant contractors (those receiving between $7.5 million and $50 million in federal contracting obligations in the prior fiscal year) would be required to inventory their annual GHG emissions and disclose this information to the federal government.
Major contractors (receiving over $50 million in contracting obligations) would also be required to make publicly available CDP climate disclosures and set targets for reducing GHG emissions. Contractors that fail to comply with these requirements would be deemed nonresponsible and ineligible for federal awards.
On Feb. 13, 2023, ABC submitted comments opposing the overly burdensome, costly and punitive approach to regulating GHG emissions of federal contractors. While ABC understands the need for sensible environmental policies that balance the protection of the environment with the costs that compliance with these regulations requires, the comments outline how the proposed rule fails to strike that balance.
U.S. Treasury Department
ABC Opposes the Inflation Reduction Act’s Tax Credit Mandates
The reckless Inflation Reduction Act (H.R.5376) was signed into law on Aug. 16, 2022. The ABC-opposed legislation provides over $369 billion in tax credits for clean energy construction projects with a bonus tax credit 500% greater than the baseline credit of 6%. The credit is conditioned on requirements that contractors pay Davis-Bacon prevailing wages and utilize apprentices enrolled in government-registered apprenticeship programs.
ABC believes that the IRA penalizes employers that win work based on fair and open competition and limits opportunities for thousands of construction workers. ABC advocates for fixes to the IRA’s most harmful tax and labor policies. Despite its name, the Penn Wharton Budget Model shows low confidence that the IRA will have any impact on reducing inflation.
According to guidance released by the IRS in November, in order to access full tax credits, developers of qualifying projects beginning on or after Jan. 30, 2023, are required to use apprentices from government-registered apprenticeship programs for at least 12.5% of the total labor hours of the project in 2023, increasing to 15% in 2024 and thereafter. Each contractor and subcontractor employing four or more individuals on a qualifying project must employ one or more apprentices from a government-registered apprenticeship program. In order to receive the full bonus, laborers and mechanics must be paid an hourly prevailing wage rate set by the DOL via the Davis-Bacon Act.
ABC submitted comments opposing the Davis-Bacon and apprenticeship requirements the act imposes in November 2022.
ABC has developed a website with resources for contractors and developers seeking to comply with the IRA’s prevailing wage and apprenticeship requirements. ABC has also created a new email address, [email protected], for members to submit questions that the federal government has not provided clear guidance on. Read more.
National Labor Relations Board
ABC Urges NLRB to Withdraw Joint Employer Rule
On Sept. 6, 2022, the NLRB announced a new joint employer proposed rule, which would rescind and replace the ABC-supported 2020 final rule on Joint Employer Status Under the National Labor Relations Act. ABC expressed disappointment that the NLRB is once again revising its standard for determining joint-employer status, which will cause great confusion among construction contractors, specifically small business owners. On Dec. 7, ABC submitted comments opposing the new NLRB proposal.
ABC joined the CDW in creating a grassroots toolkit to tell the NLRB to abandon its new rule, and later participated in the U.S. Small Business Administration’s Office of Advocacy virtual roundtable on the proposal. The ABC-led CDW and several other organizations successfully advocated for an extension to the rule’s comment period.
According to the fall 2022 regulatory agenda, a final rule is expected in August 2023. Read more.
ABC Opposes NLRB Representation-Case Procedures Proposed Rule
On Feb. 2, 2023, ABC submitted comments to the National Labor Relations Board opposing its proposed rule on Representation-Case Procedures, which addresses election-blocking charges, voluntary recognition and construction industry bargaining relationships. The proposal would rescind the ABC-supported 2020 NLRB final rule, which is intended to “better protect employees’ statutory right of free choice on questions concerning representation.”
ABC also signed on to the Coalition for a Democratic Workplace’s comment letter along with 12 other employer organizations. The CDW argued that the proposed rulemaking would “negatively affect the Board’s representation case jurisprudence, undermine the agency’s statutory goals and reputation, diminish employee free choice, and upset the balance of countervailing interests.” Read more.
Federal Trade Commission
ABC Opposes FTC’s Proposal to Ban Noncompete Agreements
ABC is strongly opposed to the Federal Trade Commission’s unprecedented proposal to ban all noncompete agreements nationwide, which is a radical departure from hundreds of years of legal precedent.
ABC construction firms have valid business justifications for utilizing noncompete agreements, such as protecting confidential information and intellectual property. This new rule will have a devastating effect on companies and their employees. The noncompete ban will force companies to rethink their compensation and talent strategies.
On Feb. 28, 2023, ABC joined 260 organizations in writing to Congress, urging lawmakers to exercise their oversight and appropriations authority to rein in FTC’s unauthorized rulemaking banning noncompete agreements. The FTC lacks the constitutional or statutory authority to issue such a rule and, in attempting to do so, the agency is improperly usurping the role of Congress.
On April 19, ABC will submit comments in opposition to the proposal, arguing that the FTC lacks the statutory authority to issue this rule and regulate competition in the market—there is no congressional authorization for such action. Read more.
U.S. Environmental Protection Agency
ABC Opposes WOTUS Final Rule
On Dec. 30, 2022, a final rule was issued by the U.S. Environmental Protection Agency and U.S. Army Corps of Engineer to revise the definition of “waters of the United States” applicable to all Clean Water Act programs and repeal the Trump administration’s ABC-supported Navigable Waters Protection Rule. ABC issued a statement on the final rule, calling it a “significant step back” that will “delay critical infrastructure projects and raise costs for the construction industry.” On Feb. 7, 2022, ABC, as a member of the Waters Advocacy Coalition, filed comments on the proposed rule in opposition.
On Feb. 16, 2023, 24 state attorneys general filed a lawsuit against the EPA and Corps seeking to overturn the final rule.
On Feb. 27, ABC, along with members of the Waters Advocacy Coalition, sent a letter to the House Transportation and Infrastructure Committee supporting H.J. Res. 27, a joint resolution of disapproval under the Congressional Review Act of the revised WOTUS regulation. ABC key-voted the resolution, which passed by a bipartisan 227-198 vote on March 9.
On March 19, the U.S. District Court for the Southern District of Texas issued a ruling blocking the EPA and Corps from enforcing the WOTUS final rule, but only in the states of Texas and Idaho. The court separately rejected a request to block enforcement nationwide.
According to the fall 2022 regulatory agenda, a Revised Definition of “Waters of the United States” Phase 2 proposed rule is expected in November 2023.
Council on Environmental Quality
ABC Opposes National Environmental Policy Act Implementing Regulations Revisions
On April 19, 2022, the Council on Environmental Quality announced its final rule revising the implementation regulations of the National Environmental Policy Act, which will cause needless delays for small businesses and increase costs for taxpayers.
ABC supported passage of S.J. Res. 55, introduced by Sen. Dan Sullivan, R-Alaska, which would overturn the final rule and preserve ABC-supported reforms implemented in July 2020 under President Trump. The resolution passed the Senate on Aug. 4, 2022, in a 50-47 vote but failed to reach the House floor.
A second proposed rule, which will more broadly revise NEPA regulations, arrived at the OIRA in January 2023 and is expected to be released soon. Read more.
U.S. Department of Transportation
ABC Opposes Union Labor Requirements on Electric Vehicle Charging Station Installation
On Feb. 15, 2023, the U.S. Department of Transportation’s Federal Highway Administration released its final rule establishing the National Electric Vehicle Infrastructure Formula Program.
The NEVI Formula Program will implement provisions of the Infrastructure Investment and Jobs Act, signed into law in 2021, that include $7.5 billion for electric vehicle charging stations (including $5 billion over five years to install EV chargers mostly along interstate highways). The intent of the program is to support the installation of 500,000 electric vehicle chargers across the country by 2030 as part of a domestic push to shift away from gas-powered vehicles.
The final rule requires that all electricians working on electric vehicle supply equipment either be certified by the International Brotherhood of Electrical Workers’ Electric Vehicle Industry Training Program or be a graduate or recipient of a continuing education certificate from a government-registered apprenticeship program. Additionally, the final rule requires all NEVI-funded projects that require more than one electrician to use at least one GRAP-enrolled apprentice.
On Aug. 22, 2022, ABC submitted comments to the DOT in opposition to these union labor requirements included in the proposed rule. Read more.
Office of Management and Budget
ABC Warns OMB About Downstream Impacts of Buy America Expansion
On Feb. 9, the OMB released a proposed rule to revise OMB’s Guidance for Grants and Agreements. This guidance defines the rules for federal agencies as they distribute funding through grant programs. The revisions would aid implementation of the Build America, Buy America Act provisions of the Infrastructure Investment and Jobs Act.
The IIJA requires expanded Buy America preferences and broadens the preferences to include nonferrous metals, such as copper used in electric wiring; plastic- and polymer-based products; glass, including optical fiber; and certain other construction materials, such as lumber and drywall. The proposed guidance codifies these requirements.
On March 10, ABC submitted comments on the OMB’s proposed revision of its Guidance for Grants and Agreements, urging the agency to consider supply chain impacts, insufficient implementation information and other negative outcomes as it seeks to expand use of U.S.-made construction components. Additionally, over 400 ABC members submitted concerns regarding the proposed guidance through ABC’s Action Center.
U.S. Department of Agriculture
ABC Urges USDA To Withdraw Proposal That Includes New Labor Law Compliance Certifications and Reporting
On Feb. 17, 2022, the U.S. Department of Agriculture published a proposed rule to make amendments to the Agriculture Acquisition Regulation, which includes new labor law compliance certifications and reporting provisions that present wide-ranging implications for ABC members that perform work on federal contracts awarded under the AGAR. On March 21, ABC submitted comments urging the USDA to withdraw the proposal.
According to the fall 2022 regulatory agenda, the USDA plans to repropose the proposed rule to be “responsive to the comments received on our February 2022 proposal” in May 2023. Read more.
Learn more about additional ABC comment letters submitted to the Biden administration and federal agencies here.
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