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The Biden administration continues to roll back Trump-era initiatives and institute new, pro-union policies that challenge ABC members’ ability to win work. ABC continues to fight against these proposed rules and regulations affecting merit shop contractors and advocate for open competition and free enterprise.
ABC’s Regulatory Roundup is updated on a regular basis and includes information about federal regulations, guidance and compliance materials from the U.S. Department of Labor, U.S. Department of the Treasury, Federal Acquisition Regulation Council, National Labor Relations Board, Federal Trade Commission, Environmental Protection Agency and Council on Environmental Quality.
Read ABC’s April Regulatory Roundup to learn more about the latest developments affecting the construction industry.
On April 1, the U.S. Department of Labor issued an updated version of its Prevailing Wage Resource Book. The resource provides an overview of prevailing wage requirements under the Davis-Bacon and Related Acts and Service Contract Act. The updated guide incorporates changes to Davis-Bacon regulations that came into effect on Oct. 23, 2023, under the August 2023 final rule.
The final rule made drastic revisions to the Davis-Bacon Act and Related Acts regulations that apply to federal and federally assisted construction projects funded by taxpayers. These regulations require contractors on covered projects to pay prevailing wages determined by the DOL’s survey process. Unfortunately, the rule reversed important reforms that were established by the Reagan administration and increased the inaccuracy of Davis-Bacon wage determinations.
On Nov. 7, 2023, ABC filed a lawsuit in the U.S. District Court for the Eastern District of Texas challenging the final rule, asserting that it violates numerous federal statutes and violates principles of fair and open competition on federal and federally assisted construction projects. Further updates will be provided in Newsline as the case proceeds.
ABC offered a members-only webinar on the final rule on Aug. 21, 2023. More information and resources are available on ABC’s website at abc.org/davisbacon.
On April 10, the Office of Information and Regulatory Affairs at the Office of Management and Budget concluded its review of the U.S. Department of Labor’s Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales, and Computer Employees final rule. The rule would alter overtime regulations under the Fair Labor Standards Act. The rule is expected to be released imminently now that it has completed OIRA review.
While details of the final rule are not yet available, the DOL’s proposed rule would increase the minimum salary threshold for exemption by nearly 70%, from the current $35,568 annual salary level to $60,209 annually. The DOL also proposed to significantly raise the total annual compensation needed to qualify for exemption under the streamlined test for highly compensated employees from the current total annual compensation of $107,432 to $143,988. Finally, the DOL proposed to automatically update the standard salary level and the HCE total annual compensation threshold every three years.
On Nov. 7, 2023, ABC submitted comments to the DOL in opposition to the rulemaking. ABC also issued a press release and signed onto coalition comments criticizing the proposed rule as a steering committee member of the Partnership to Protect Workplace Opportunity.
To learn more about the rule’s proposed changes, see ABC general counsel Littler Mendelson’s analysis of the proposal. Also, see the DOL’s frequently asked questions about the proposed rule.
In 2016, the Obama administration issued a final overtime rule that would have doubled the minimum salary level for exemption from $23,660 to $47,476 per year. ABC, along with several other business groups, sued the DOL in federal court and succeeded in blocking the rule from taking effect.
ABC will provide additional updates once the final rule is released.
On April 10, the U.S. Senate passed H.J. Res 98, the Joint Employer Congressional Review Act resolution of disapproval, in a 50-48 vote. ABC sent a key vote letter to senators ahead of the vote urging them to support the resolution, which would nullify the ABC-opposed National Labor Relations Board’s 2023 joint employer final rule. The Senate’s action comes two months after the U.S. House of Representatives passed H.J. Res 98 in a 206-177 vote, with eight Democrats supporting. Although President Joe Biden has vowed to veto the resolution, passage in the House and Senate sends a strong message to the administration as they continue to implement harmful labor policies.
On March 8, the U.S. District Court for the Eastern District of Texas vacated the NLRB’s 2023 joint employer final rule and the Board’s rescission of the ABC-supported 2020 joint employer final rule. Under the court’s decision, the 2020 final rule, which provides clear criteria for companies to apply when determining their joint employer status, remains in effect today.
On Nov. 9, 2023, ABC joined the U.S. Chamber of Commerce and a coalition of business groups in filing a lawsuit challenging the NLRB’s final rule for violating the National Labor Relations Act and for acting arbitrarily and capriciously in violation of the Administrative Procedure Act. On Feb. 22, 2024, the judge in the case delayed the final rule’s effective date from Feb. 26 to March 11. The 2023 final rule rescinded the ABC-supported 2020 NLRB joint employer final rule, which provided clear criteria for companies to apply when determining status.
The 2023 final rule was scheduled to go into effect on March 11. According to an NLRB press release, “The Agency is reviewing the decision and actively considering next steps in this case.”
To learn more about the federal court’s decision, read ABC general counsel Littler Mendelson’s analysis. Also, read ABC’s statement applauding the decision.
On March 21, ABC wrote a letter in support of H.R. 7784, the Start Applying Labor Transparency Act or SALT Act (introduced by Rep. Burgess Owens, R-Utah), which would amend the Labor-Management Reporting and Disclosure Act of 1959. Its purpose is to clarify that labor organizations and their consultants must report when they engage in a coercive tactic known as “salting”—a process where unions send professionally trained organizers into merit shop workplaces under the guise of seeking employment.
ABC wrote, “The SALT Act provides workers with transparency and, at the same time, protects small businesses from the toxic work environment salts often seek to create. This saves businesses significant time, money and resources that would enable them to hire more employees, invest in equipment and secure more work to grow their companies and provide additional jobs in the community.”
According to Rep. Owens, the SALT Act enhances the Labor-Management Reporting and Disclosure Act of 1959 by requiring labor organizations and individuals to file reports on payments, loans, agreements or arrangements made to influence employees’ organizational and bargaining rights, as well as receipts and disbursements related to labor relations services.
“Imagine a scenario where an employee, without the knowledge of their colleagues and employer, is receiving compensation from a union while advocating for its interests within the workplace,” said Rep. Owens in a press release introducing the legislation. “This deception not only breeds suspicion but also erodes the very foundation of trust and transparency between employers and employees. The SALT Act seeks to address this issue by requiring union salts to disclose their affiliation with the U.S. Department of Labor, ensuring transparency and fairness in the workplace.”
ABC applauds Rep. Owens for introducing the SALT Act and has urged members of the U.S. House Committee on Education and the Workforce to support the legislation and further efforts to promote transparency in the workplace and counter the detrimental effects of union salting.
The U.S. Environmental Protection Agency recently launched a new website, epa.gov/permits, with the goal of providing a centralized source of information about federal environmental permitting programs under the EPA’s jurisdiction.
The website includes information on enforcement of Clean Water Act permitting requirements under the recently updated definition of “waters of the United States,” among numerous other permitting programs.
Additionally, the U.S. Army Corps of Engineers and EPA have recently published a number of joint policy memos regarding the interpretation of WOTUS, available on the Army Corps’ website under the ‘EPA-Army Joint Policy Memos’ section.
On April 1, ABC submitted comments opposing the Federal Acquisition Regulatory Council’s proposed rule, Pay Equity and Transparency in Federal Contracting. The proposal would prohibit federal contractors and subcontractors from requesting or considering information about a job applicant’s salary history during hiring for certain positions and would also require them to publicly disclose the salary for certain positions as part of any advertisements for the job opening.
Companies would be required to comply with these provisions for any position that will perform work on or in connection with a federal contract. The rule also establishes a complaint process for job applicants to report contractor noncompliance to the contracting agency.
ABC’s comments highlighted several concerning issues regarding the proposed rule, including:
ABC will continue to monitor this regulation and provide additional information as the FAR Council moves towards a final rule.
On March 29, the U.S. Department of Labor’s Occupational Safety and Health Administration announced its Worker Walkaround Representative Designation Process final rule, which allows employees to choose a third-party representative, such as an outside union representative or community organizer, to accompany an OSHA safety inspector into nonunion workplaces during site inspections. This final rule is effective on May 31, 2024. ABC will offer a webinar on Tuesday, April 9 at 2 p.m. ET about the final rule. Register now!
ABC issued a press release opposing the final rule, saying:
“Now, construction employees and employers could face serious safety concerns because the final rule has the potential to allow anyone on a jobsite,” said Greg Sizemore, ABC vice president of health, safety, environment and workforce development. “There simply is no business case for this final rule and no benefit during a compliance inspection.”
“By allowing outside union agents access to nonunion employers’ private property, OSHA is injecting itself into labor-management disputes and casting doubt on its status as a neutral enforcer of the law,” said Sizemore. “This final rule negatively impacts the rights of employers while simultaneously ignoring the rights of the majority of employees who have not authorized a union to represent them. OSHA’s rule also poses unnecessary risk to the individual joining the inspection and others on the jobsite if the authorized person is not trained to safely walk a construction jobsite. The rule does not include any requirement that the authorized person be equipped or conduct themselves to the same standards as OSHA safety inspectors. Further, the final rule fails to answer who is legally responsible if the third party gets injured during the inspection or harms someone else.”
ABC is currently considering all options in response to this rule.
OSHA Resources on the final rule:
On Nov. 13, ABC submitted comments urging the DOL to withdraw its Worker Walkaround Representative Designation Process proposed rule. ABC also signed on to comments submitted by the Coalition for Workplace Safety and Construction Industry Safety Coalition.
ABC will continue to monitor this issue and provide updates as they become available.
On March 22, Sen. Bob Casey, D-Pa., led a group of Democratic senators in a letter to U.S. Department of the Treasury Secretary Janet Yellen, urging Treasury to impose additional burdensome labor mandates and compliance regulations in the agency’s implementation of the Inflation Reduction Act.
The ABC-opposed IRA provides over $270 billion in tax credits for the construction of solar, wind, hydrogen, carbon sequestration, electric vehicle charging stations and other clean energy projects. Unfortunately, these tax credits are conditioned on compliance with restrictive prevailing wage and government-registered apprenticeship program mandates.
On Aug. 29, 2023, Treasury issued a proposed rule and FAQs to provide additional guidance regarding the IRA’s prevailing wage and apprenticeship requirements. On Oct. 30, ABC submitted comments to the IRS and issued a Oct. 31 press release, outlining the cumbersome and unclear nature of the regulations and provisions that inhibit fair and open competition by unfairly favoring unionized contractors. A final rule is expected by the end of 2024, but taxpayers and contractors may rely on the proposed rule for compliance until the final rule is issued.
The senators’ recommendations regarding the regulations would exacerbate these concerns if implemented, with the letter’s suggestions that they would:
ABC will continue to advocate for Treasury to instead promote policies that welcome all qualified contractors on clean energy projects. Additional resources and information are available at abc.org/ira.
The U.S. House of Representatives recently passed the Creating Confidence in Clean Water Permitting Act in a 213-205 vote. H.R. 7023, sponsored by Rep. David Rouzer, R-N.C., includes provisions from five stand-alone ABC-supported bills that passed out of the House Committee on Transportation and Infrastructure on Jan. 31: The Nationwide Permitting Improvement Act, the Reducing Permitting Uncertainty Act, the Judicial Review Timeline Clarity Act, the Water Quality Criteria Development and Transparency Act and the Confidence in Clean Water Permits Act. The bill will go a long way toward eliminating unnecessary delays that cause budget overruns in construction.
ABC sent a letter in support of H.R. 7023 to all House members, saying it represents the best and most comprehensive federal regulatory permitting and project review reform legislation on the table this Congress.