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ABC congratulates Baker Concrete Construction Inc. of Fort Lauderdale, Florida, a member of the Florida East Coast and several other chapters, and Bald Hill Builders of Walpole, Massachusetts, a member of ABC’s Massachusetts chapter, for earning the Accredited Quality Contractor credential.
The AQC program recognizes and honors construction firms that document their commitment to excellence in key areas of corporate responsibility: quality, safety, craft and management education, talent management and community relations. A company that meets the criteria set forth in the program and has earned Gold, Platinum or Diamond status in ABC’s STEP Safety Management System® is formally designated an Accredited Quality Contractor.
As an AQC, you have the opportunity to:
If you would like to see your company achieve this value, visit abc.org/aqcapp for more information and to get started. The application window for 2024 closes Wednesday, Oct. 23.
On Sept. 4, ABC joined industry partners in filing an amicus brief with the U.S. Supreme Court in the case Seven County Infrastructure Coalition v. Eagle County, Colorado, as the court considers whether the National Environmental Policy Act requires that agencies consider environmental impacts beyond the immediate effects of their regulatory decision.
The petitioner in the case, the Seven County Infrastructure Coalition in Utah, is before the court concerning approval of construction of a new rail line by the Surface Transportation Board. At issue is whether the Board must consider distant environmental effects such as increased oil drilling and refining activities facilitated by the rail line. Seven County argues that the Board should instead be limited to considering the direct effects of approving or denying a permit for the rail line.
ABC’s brief supports the petitioner, arguing that consideration of environmental factors not directly related to the permit would improperly expand NEPA reviews beyond congressional intent.
A favorable outcome in the case could help preserve a more reasonable scope for NEPA reviews, ensuring that federal agencies properly consider important environmental protections without causing unnecessary delays and increased costs for critical infrastructure projects.
On Sept. 3, Associated Builders and Contractors joined 150 members of the Small Business & Entrepreneurship Council in a letter of support for H.R.9278, introduced by Rep. Zach Nunn, R-Iowa. This legislation would provide small businesses with an additional year to file the beneficial ownership information required by the U.S. Department of Treasury’s Financial Crimes Enforcement Network’s Corporate Transparency Act implementing regulation.
The CTA requires millions of small businesses, including nearly every employer with 20 or fewer employees, to report personal information of their beneficial owners and update that information periodically throughout the life of the business. Failure to comply with the onerous reporting requirements could subject small business owners and employees to potential fines and jail time.
“Although filing under the CTA began at the start of this year, FinCEN reports it has received just 10% of required submissions. This compliance rate can be attributed directly to the general lack of awareness among the small business community when it comes to the new rules. Given this massive education gap, it is clear additional time is needed for regulators and other stakeholders to continue their outreach to affected small businesses,” the letter stated.
In the letter, ABC and the SBE Council urged Speaker Johnson to bring H.R. 9278 to the U.S. House of Representatives floor for a vote to provide business owners and employees with more time to comply with the CTA.
A similar bipartisan bill to H.R.9278, sponsored by Reps. Nunn and Joyce Beatty, D-Ohio, passed the House late last year, 420-1. However, U.S. Senate Banking Committee Chair Sherrod Brown, D-Ohio, stalled the legislation, putting small businesses at risk.
For more on the CTA Beneficial Ownership Requirements, see ABC’s Compliance Update published on Aug. 5. ABC encourages members and small business owners to discuss FinCEN’s BOI reporting requirements with counsel.
On Sept. 6, President Joe Biden signed Executive Order 14126 on Investing in America and Investing in American Workers, a new effort by the Biden-Harris administration to utilize federal policy to favor unions that is likely to undermine competition to build taxpayer-funded infrastructure projects.
In response to the White House EO fact sheet released Friday morning prior to Biden signing the EO at a union hall in Michigan, ABC immediately issued a press release condemning the EO and its impact on fair and open competition that was picked up in multiple media outlets, stating in part:
“This gift to unions is discouraging for the overwhelming majority of the U.S. construction industry workforce—nearly 90%—that works for nonunion employers,” said Ben Brubeck, ABC vice president of regulatory, labor and state affairs. “It also will hurt taxpayers and the overall construction industry, as both benefit from inclusive, win-win policies that welcome all contractors and workers to rebuild America, even if they decide not to affiliate with labor unions.
“The executive order will undermine the efficient and economical delivery of taxpayer-funded infrastructure, clean energy and manufacturing projects and is consistent with the Biden-Harris administration’s politically motivated policy schemes,” said Brubeck. “These policies steer taxpayer-funded infrastructure contracts to unionized businesses and create jobs exclusively for union members at the expense of everyone else and the rule of law.”
The EO, which claims to be an effort to promote high-quality jobs on federally funded construction projects, steers contracts to unionized firms and creates unions jobs by directing agencies to prioritize the distribution of federal financial assistance to applicants that (among other provisions listed in Section 3 of the EO):
The EO directs agencies to implement this prioritization through application evaluation criteria on notices of funding opportunity. Already, ABC has identified over $271 billion in federal funding since President Biden took office subject to language and policies promoting PLA mandates and preferences that will increase costs and reduce competition on federally assisted construction projects.
The EO establishes a new Investing in Good Jobs Task Force within the Executive Office of the President, co-chaired by the secretary of labor and the director of the National Economic Council, with the responsibility of ensuring the EO is implemented across the federal government.
It is unclear when the Task Force recommendations will be released for public review, whether there will be a public notice and comment period for any new regulations or if this will be done administratively with no public input.
Of note, it is unclear if this new policy is something that a Harris or Trump White House would support, eliminate or modify.
it is more likely that a Trump White House would eliminate additional red tape undermining taxpayer investments in infrastructure, as the Trump administration previously repealed an Obama administration rule imposing a controversial pro-labor blacklisting regulation on federal construction projects that is similar in nature to the Good Jobs EO.
On Sept. 10, Brubeck joined Labor Relations Radio to discuss the new EO in greater detail.
ABC will continue to oppose and monitor this issue and forthcoming Task Force recommendations, policies and rulemakings.
In a win for ABC members, on Aug. 20, the U.S. District Court for the Northern District of Texas blocked the Federal Trade Commission from implementing its rule to ban noncompete agreements. The court found that the FTC lacked statutory authority to promulgate the rule and that the rule is arbitrary and capricious. This means the rule will not be enforced or otherwise take effect on Sept. 4, 2024. According to media reports, the FTC is considering appealing the decision. To learn more about the decision, read ABC’s general counsel Littler Mendelson’s analysis.
ABC is extremely pleased with the court’s decision and has consistently stated that ABC members have valid business justifications for utilizing noncompete agreements, such as protecting confidential information and intellectual property. The new rule would have had a harmful effect on member companies as well as their employees, forcing employers to rework their compensation and talent strategies.
On July 3, the same Texas court issued a limited preliminary injunction and stay of the FTC’s rule. On May 14, ABC joined a broad group of trade associations in filing an amicus brief in support of the plaintiffs’ request for injunctive relief against the FTC’s final rule to ban noncompete clauses.
Following the FTC’s vote on April 23 to finalize the ban on noncompetes rule, ABC issued a release opposing the rule, stating, “The final rule to ban all noncompete agreements nationwide—except existing noncompetes for senior executives—is a radical departure from hundreds of years of legal precedent. Ultimately, this vastly overbroad rule will invalidate millions of reasonable contracts—including construction project contracts—around the country that are beneficial for both businesses and employees.”
In April 2023, ABC submitted comments in opposition to the FTC’s unprecedented proposal to ban noncompetes. ABC also joined the U.S. Chamber of Commerce and 280 business groups in submitting comments urging the FTC to rescind the proposed rule.
Continue to monitor ABC’s Newsline for further updates.
On Aug. 15, the U.S. Department of Defense issued a proposed rule, Assessing Contractor Implementation of Cybersecurity Requirements, which seeks to implement contractual requirements for DOD contracts related to the recently proposed Cybersecurity Maturity Model Certification 2.0 Program. Comments on the proposed rule are due Oct. 15.
Previously, on Dec. 26, 2023, the DOD released a proposed rule and guidance documents to establish CMMC 2.0. As proposed, CMMC 2.0 would require federal contractors and subcontractors competing for DOD contracts to demonstrate continued compliance with a range of cybersecurity measures to maintain eligibility for performing and winning new federal awards. ABC joined coalition comments on that rule, calling for more clarity and urging a flexible implementation of CMMC requirements. This rule has yet to be finalized.
The Aug. 15 rule largely defers to CMMC 2.0 as previously proposed, with a focus on providing guidance to contracting officers as well as standard contracting clauses and solicitation provisions to incorporate CMMC 2.0.
However, the proposed rule includes new provisions of note, including:
For more information on the proposed rule and cybersecurity requirements impacting federal contractors, see Wiley Rein’s legal analysis of the proposal and ABC’s Cybersecurity Resource Guide.
On Aug. 1, the Senate Health, Education, Labor, and Pensions Committee voted to advance two nominees to the National Labor Relations Board. Democrat Lauren McFerran's nomination to serve another term as chair passed in a party-line vote, 11-10. The nomination of Republican Josh Ditelberg passed with a bipartisan vote of 18-3. A full Senate vote on these two nominations is not yet scheduled.
The ABC-led Coalition for a Democratic Workplace issued a statement on the vote, saying:
“Chair Sanders chose to hold this vote without providing his colleagues any opportunity to publicly question Lauren McFerran about her troubling record. Her tenure on the Board has included condemnations from federal courts, OIG reports criticizing the NLRB for ‘gross mismanagement’ under her watch and bipartisan rejection of her policies by Congress.
“Moreover, this nomination is an attempt by the Biden administration to control the Board’s agenda for years into the next administration, regardless of who wins the election.
“The Board’s mismanagement and malfeasance under McFerran’s leadership should disqualify her from confirmation. CDW strongly urges the full Senate to reject her nomination.”
CDW sent letters to the HELP Committee in and urging members to reject McFerran's nomination due to the Board's mismanagement and malfeasance under her leadership, her extreme policy agenda, and the decision by comittee chair Sen. Bernie Sanders, I-Vt., to break with long-standing precedent and not hold a confirmation hearing on her nomination.
CDW will continue to reach out to Senate offices to educate them about McFerran's record on the Board and urge them to reject her nomination.
Effective Jan. 1, 2024, the Corporate Transparency Act requires certain entities, including many small businesses, to report information about the individuals who ultimately own or control them (also known as their “beneficial owners”) to the Financial Crimes Enforcement Network, a bureau of the U.S. Department of the Treasury.
A separate regulatory requirement currently requires many financial institutions to also collect beneficial ownership information, or BOI, from certain customers that seek to open accounts as part of federal customer due diligence requirements.
ABC has expressed serious concerns with the Treasury’s FinCen’s implementation of CTA. FinCEN’s implementing regulations require millions of small businesses, including nearly every employer with 20 or fewer employees, to report personal information of their beneficial owners and update that information periodically throughout the life of the business.
On March 1, a federal judge for the U.S. District Court for the Northern District of Alabama Northeastern Division ruled that the CTA is unconstitutional. The decision, however, only applies to members of the association involved in the suit, and all other businesses are still required to adhere to the CTA’s filing requirements. ABC has called on Congress to examine the ruling and has argued that a stay in enforcement should apply to all affected parties. On March 11, Treasury appealed the decision.
ABC, along with 100 organizations representing millions of small businesses nationwide, sent a letter to Congress strongly supporting legislation introduced by Rep. Warren Davidson, R-Ohio, to repeal the CTA. ABC also calls on Congress to enact the Protect Small Business and Prevent Illicit Financial Activity Act (S. 3625). The legislation, championed by Sen. Tim Scott, S.C., would delay the onerous CTA filing requirements and accompanying jail time and penalties by one year. A similar bipartisan bill sponsored by Reps. Zach Nunn, R-Iowa, and Joyce Beatty, D-Ohio, passed the House late last year 420-1.
Information about FinCEN’s BOI reporting requirements:
ABC encourages members and small business owners to discuss FinCEN’s BOI reporting requirements with counsel.
Please continue to monitor Newsline for additional updates.
On July 26, the National Labor Relations Board issued its misnamed Fair Choice-Employee Voice final rule, which rescinds the ABC-supported 2020 Election Protection final rule, jeopardizing employees’ right of free choice in representational matters and disrupting the Board’s current representation processes. The 2020 final rule was intended to “better protect employees’ statutory right of free choice on questions concerning representation.”
Immediately following the issuance of the final rule, the Coalition for a Democratic Workplace issued the following statement attributed to Kristen Swearingen, ABC vice president of legislative & political affairs and CDW chair:
“The Board’s final rule eliminates commonsense measures that protect workers’ right to decide for themselves if they want union representation in the workplace. The rule forces employees into unions they may not want and makes it more difficult for employees to decertify unions that no longer have support from the workforce. These policies undermine employee free choice, and Congress and/or the courts should move to nullify them.”
The new rule makes three key policy changes: It rescinds and replaces the provisions of the 2020 final rule that address the “blocking charge” policy and voluntary-recognition bar doctrine and rescinds the portion of the final rule that addresses proof of majority support for labor organizations representing employees in the construction industry.
Specifically, the rule returns to the blocking charge policy that halts union representation or decertification elections if the union alleges the employer committed unfair labor practices until those charges are resolved; eliminates the 45-day window that allows workers to demand a secret ballot election if the employer voluntarily recognizes the union based on signed authorization cards; and rescinds amendments that require unions in the construction industry to maintain proof of majority support if they want an exclusive collective bargaining relationship that is resistant to challenge.
The effective date of the new rule is Sept. 30, 2024, and will only be applied to cases filed after the effective date.
Board members David Prouty and Gwynne Wilcox joined Chair Lauren McFerran in issuing the final rule. Member Marvin Kaplan dissented. Read ABC’s 2023 comments opposing the proposed rule. ABC also joined comments submitted by the ABC-led CDW.
NLRB Chair Lauren McFerran stated, “Today’s rule restores the Board’s prior law, including longstanding principles that ensure a fair process for workers to choose whether they want representation, and provide a better foundation to allow collective bargaining relationships to thrive.”
Continue to monitor Newsline for any future updates.
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 is fighting against these proposed rules and regulations affecting merit shop contractors and advocating for open competition and free enterprise.
The Biden administration’s costly and burdensome regulatory actions continue to harm American families and businesses by:
This adds up to $201.4 billion in regulatory costs and 276 million hours of paperwork over three years.
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 July Regulatory Roundup to learn more about the latest developments affecting the construction industry.