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The Construction Specifications Institute is looking for new members on its MasterFormat Task Team—a group of eight specification, architecture, engineering, construction and owner professionals selected to serve the industry by investing time, expertise and effort in the updating and maintenance of the MasterFormat classification standard. The deadline to apply is Jan. 30.
Founded in 1948, CSI is a national not-for-profit association of more than 6,000 members dedicated to improving the communication of construction information throughout continuous development and transformation of standards and formats, education and certification of professionals to improve project delivery processes. CSI members work tirelessly to effectively communicate the designers’ vision, the material producers’ solutions and the constructors’ techniques to create outstanding facilities that meet facility owners’ objectives.
Through regular meetings and industry interface, as well as interfacing with the CSI Standards Steering Committee and CSI staff, the MasterFormat Task Team will review proposed changes from the community, solicit input from industry stakeholders and work to finalize a proposal to the CSI Standards Steering Committee for finalization.
This position is open to CSI members and nonmembers, and applicants should be an influencer in the AECO industry.
Task Team members serve a two-year term beginning Jan. 1, 2024. Two virtual meetings are held monthly, with ad hoc meetings as needed. The approximate time commitment for the volunteer will be 10-15 hours monthly, inclusive of task team meetings and review of proposals.
For more information on and to apply, visit the MasterFormat Task Team page on CSI’s website.
On Jan. 17, 2024, the Federal Register published the controversial 626-page U.S. Department of Labor proposed rule that would make significant revisions to the National Apprenticeship System that will affect ABC members, chapters, apprentices and other industry stakeholders participating in government-registered apprenticeship programs.
On Jan. 30, 2024, from 2 to 3:15 p.m. ET, ABC offered a members-only webinar on the proposed rule regarding the problematic and beneficial provisions of the rule and how to best participate in regulatory and advocacy efforts to help improve this extensive regulation. Watch the archived webinar on ABC’s Academy, which is available to ABC members in management positions and chapter staff. To obtain login information, ABC members should fill out the online Academy Login Request Form.
In addition, the U.S. Department of Labor’s Employment and Training Administration abruptly cancelled its Jan. 11 webinar summarizing the proposed rule. The webinar has been rescheduled for Jan. 25 at 2 p.m. ET.
The deadline for public comments on the DOL proposal is March 18, 60 days after the proposal was published in the Federal Register. ABC submitted a request to extend the deadline by 30 days.
DOL Proposal Widely Criticized
On Dec. 18, ABC issued a press release in response to the ABC-opposed proposal, which the DOL published a preliminary version of on Dec. 14:
“ABC supports government-registered apprenticeship programs and offers more than 450 such education programs across the country as part of its all-of-the-above approach to meet the workforce needs of the construction industry,” said Ben Brubeck, ABC vice president of regulatory, labor and state affairs. “ABC is thoroughly reviewing the Biden DOL’s overreaching, 779-page proposal and is concerned that aspects of the proposed rule will limit the number of apprentices and employers participating in GRAPs.
“Already, the government-registered apprenticeship system is woefully inadequate in meeting the workforce needs of the construction industry,” said Brubeck. “Recent data suggests that it would take 12 years for the current broken GRAP system to educate the more than half a million workers needed by the construction industry in 2023 alone. Additional unclear and onerous requirements in the DOL proposal are likely to exacerbate the construction industry’s skilled labor shortage.
“The misguided proposal will discourage employer participation in the GRAP system by adding more bureaucracy and paperwork requirements while also eliminating flexible competency-based approaches to workforce development that benefit apprentices and employers,” said Brubeck. “As currently written, the Biden’s proposal threatens to undermine significant investments recently made by taxpayers in infrastructure, clean energy and manufacturing projects procured by government and private owners.”
The Biden DOL’s proposed rule was also panned by both the chairwoman of the U.S. House Education and the Workforce Committee Virginia Foxx, R-N.C., and the ranking member of the Senate HELP Committee Bill Cassidy, R-La.
Rep. Foxx’s statement derided the new rule, stating, “If the goal was to make an already dysfunctional registered apprenticeship system less workable and relevant to the needs of workers and employers, this proposed rule appears likely to succeed.”
Sen. Cassidy’s statement criticized the rule’s circumvention of Congress, seeking to implement a new regulation “395 times longer than the legislation it is supposedly interpreting.” According to Cassidy’s statement:
“The regulations would inject political ideology into the National Apprenticeship System, including diversity, equity, and inclusion (DEI) policies. The rule would allow DOL to dissolve the apprenticeship programs of employers accused by labor unions of misconduct without a requirement that the charges are verified by the National Labor Relations Board (NLRB). This would empower unions to intimidate and coerce employers with baseless accusations. It would also give unions veto authority over new apprenticeship programs, limiting job training opportunities for American workers. This comes at a time when workforce shortages continue and the labor force participation rate remains well below pre-COVID levels.
“Additionally, the rule gives the U.S. Department of Labor’s Office of Apprenticeship and State Apprenticeship Agencies enforcement authority over labor disputes, a role already performed by the NLRB. Ultimately, the proposed regulation applies more bureaucracy to a system in need of flexibility when responding to pressing workforce needs.”
The Biden proposal was also roasted in a Wall Street Journal editorial (Biden to Apprentices, You’re Fired, Dec. 18):
“DOL’s manifest goal is to limit non-union programs that don’t result in more union jobs. The rule would let the department dissolve programs accused by unions of misconduct or found to be non-compliant with minor government regulations and DEI benchmarks.
“One result of DOL’s regulations will be fewer job-training opportunities for minorities. The rule will also undercut the Administration’s industrial policy and climate agenda. The Inflation Reduction Act’s myriad green energy tax credits require employers to utilize apprentices from government-approved programs. Good luck finding them.
“President Biden’s message to non-union apprentices: You’re fired.”
Next Steps
In the coming weeks, ABC will provide detailed analysis and resources on the proposal to construction industry stakeholders and government-registered apprenticeship program providers and participants.
For more information on the proposed rule, Apprenticeship for America has provided an overview of the rule and a section-by-section analysis of changes from the existing rule.
ABC will also request feedback from employers, chapters, the CTE community and other affected parties on aspects of the proposal that are problematic, as well as those that may be beneficial to the construction industry.
In addition, ABC will submit comments on the proposed rule and make recommendations that will help create a final rule that can deliver value to taxpayers, the construction industry workforce and employer participants in the GRAP system.
ABC members should register for the Jan. 30, 2024, webinar from 2 to 3:15 p.m. ET to learn more.
ABC is conducting an important survey of contractor members and chapter staff regarding the proposal. Please email [email protected] to receive the survey link or if you have any questions or comments regarding the survey or proposed rule. The survey will close at 5 p.m. ET on Feb. 21.
Additional Background
On May 9, 2023, an ABC-led coalition of construction and business associations submitted a letter to the Advisory Committee on Apprenticeships opposing the committee’s recommendations to the DOL for dramatic changes to the GRAP system. These recommendations included a proposal to establish a new “Quality Seal” program to give preferential treatment to GRAPs meeting certain requirements.
It appears that some aspects of the ACA’s recommendations opposed by the coalition were incorporated into the proposal, which is likely to undermine employer and employee participation in GRAP system.
Visit abc.org/workforce to learn how ABC is building the people who build America and contact Michael Altman to learn more about the proposal.
On Jan. 11, the U.S. Department of Labor issued a final rule to adjust for inflation the civil monetary penalties assessed or enforced by the DOL, pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990 as amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015. The Inflation Adjustment Act requires that the agency annually adjust its civil money penalty levels for inflation by Jan. 15 of each year. However, due to a federal holiday on Jan. 15, the new OSHA penalty amounts went into effect on Jan. 16.
OSHA’s maximum penalties for serious and other-than-serious violations will increase from $15,625 per violation to $16,131 per violation. The maximum penalty for willful or repeated violations will increase from $156,259 per violation to $161,323 per violation.
According to the DOL, states that operate their own Occupational Safety and Health Plans are required to adopt maximum penalty levels that are at least as effective as federal OSHA levels. State plans are not required to impose monetary penalties on state and local government employers.
DOL Resources:
In December 2023, President Joe Biden announced a final rule implementing Executive Order 14063, which requires federal construction contracts of $35 million or more to be subjected to controversial project labor agreements. ABC issued a statement announcing plans to challenge the new rule in court.
On Jan. 4, ABC authored a coalition letter to Congress signed by 23 construction and business organizations opposing the final rule and urging members to co-sponsor the ABC-backed Fair and Open Competition Act. In addition, Ben Brubeck, ABC vice president of regulatory, labor and state affairs, authored a Fox Business op-ed on the Biden PLA rule, which ran on Jan. 4. Letters to the editor critical of the Biden PLA rule by ABC chapter leaders have also been published in print media.
On Jan. 12, a dozen pro-taxpayer groups sent a letter to Congress opposing the Biden rule and supporting FOCA.
The rule goes into effect on Jan. 22, 2024, and will take additional time for numerous federal agencies to implement in their procurement policies and forthcoming solicitations for construction services.
A Dec. 18, 2023, White House Office of Management and Budget memo, M-24-06, Use of Project Labor Agreements on Federal Construction Projects, provides guidance about how this rule should be implemented by federal agencies. Of note, it describes when federal contracting officers shall require a PLA in a solicitation and how the PLA requirement can be waived under limited circumstances.
ABC members and chapters are encouraged to register for an ABC members-only webinar from 2 to 3:15 p.m. ET on Wednesday, Jan. 17, 2024, where experts will discuss the rule, the OMB memo and ABC’s legal, advocacy and public relations strategies to fight federal PLA requirements.
In the interim, ABC members are encouraged to flag for ABC National’s advocacy team any solicitations with PLA requirements or pro-PLA language, as well as any federal agency PLA surveys, by emailing [email protected].
In addition, ABC members are strongly encouraged to participate in this ABC Action grassroots campaign and ask their federal lawmakers to fight the Biden administration’s pro-PLA schemes and co-sponsor the Fair and Open Competition Act (H.R. 1209/S. 537), introduced in the 118th Congress by Rep. James Comer, R-Ky., and Sen. Todd Young, R-Ind.
Review ABC’s Jan. 3 Newsline article to learn more about the final rule.
On Jan. 9, the U.S. Department of Labor’s Wage and Hour Division announced the final rule on Employee or Independent Contractor Classification Under the Fair Labor Standards Act, which rescinds the ABC-supported 2021 final rule and replaces it with a confusing multifactor analysis to determine whether a worker is an employee or an independent contractor. The final rule takes effect on March 11. Learn more about the 2024 final rule.
Immediately following the release of the 2024 final rule, ABC issued a statement opposing it, saying "it will cause workers who have long been properly classified as independent contractors in the construction industry to lose opportunities for work."
On Jan. 10, ABC, its Southeast Texas chapter, the Coalition for Workforce Innovation and the Financial Services Institute filed a motion in the U.S. Court of Appeals for the 5h Circuit requesting that it lift the stay of appeal and remand the case to the U.S. District Court for the Eastern District of Texas, Beaumont Division so that the district court may consider whether the 2024 final rule complies with the Administrative Procedure Act in its attempt to rescind and replace the current 2021 final rule. In 2022, the district court found that the DOL violated the APA when it first attempted to delay, and later attempted to withdraw the 2021 final rule; the court vacated these efforts and held that the 2021 final rule has been and remains in effect since March 8, 2021.
“The Biden administration cannot be allowed to undermine flexible work opportunities for millions of Americans who choose to work independently,” said Ben Brubeck, ABC vice president of regulatory, labor and state affairs.
Read the business coalition’s statement.
On Dec. 14, 2023, the Biden administration announced a 779-page U.S. Department of Labor proposed rule that would make significant and controversial revisions to the National Apprenticeship System that will affect ABC members, ABC chapters, apprentices and other industry stakeholders participating in government-registered apprenticeship programs.
On Jan. 30, 2024, from 2 to 3:15 p.m. ET, ABC is offering an ABC members-only webinar on the proposed rule where you will learn about the problematic and beneficial provisions of the rule and hear how you can best participate in regulatory and advocacy efforts to help improve this extensive regulation. Encourage ABC member and chapter education professionals, human resources, management professionals and other stakeholders to register to attend the webinar.
In addition, the U.S. Department of Labor’s Employment and Training Administration is sponsoring a webinar that's been postponed to a later date. Participants can expect to receive a summary of the Biden administration’s proposal from DOL officials. Register to attend the webinar.
On Dec. 18, ABC issued a press release in response to the ABC-opposed proposal:
ABC will also request feedback from affected parties on aspects of the proposal that are problematic, as well as those that may be beneficial to the construction industry.
The deadline for public comments on the DOL proposal will be 60 days after the proposal is published in the Federal Register.
Please contact Michael Altman for additional information.
Visit abc.org/workforce to learn how ABC is building the people who build America.
On Jan. 9, the U.S. Department of Labor’s Wage and Hour Division announced the final rule on Employee or Independent Contractor Classification Under the Fair Labor Standards Act, which rescinds the ABC-supported 2021 final rule and replaces it with a confusing multifactor analysis to determine whether a worker is an employee or an independent contractor. The final rule takes effect on March 11, 2024.
Immediately following the release of the rule, ABC issued the following statement from Ben Brubeck, vice president of regulatory, labor and state affairs:
“By undermining the flexible, independent work for millions of Americans, President Joe Biden’s DOL is choosing to move forward with a final rule that creates an ambiguous and difficult-to-interpret standard for determining independent contractor status. Under the rule’s multifactor test, employers will now be forced to guess which factors should be given the greatest weight in making the determination. Instead of promoting much-needed economic growth and protecting legitimate independent contractors, the final rule will result in more confusion and expensive, time-consuming, unnecessary and often frivolous litigation, as both employers and workers will not understand who qualifies as an independent contractor.
“Regrettably, the confusion and uncertainty resulting from the final rule will cause workers who have long been properly classified as independent contractors in the construction industry to lose opportunities for work. Legitimate independent contractors are a vital part of the construction industry, providing specialized skills, entrepreneurial opportunities and stability during fluctuations of work common to the industry. They play an important role for large and small contractors, delivering construction projects safely, on time and on budget for their government and private customers. This move will jeopardize the ability of construction firms to continue the industry’s longstanding practice of utilizing legitimate independent contractors.”
The DOL issued FAQs, which discuss provisions of the final rule, including:
7. What analysis guides whether a worker is an employee or independent contractor under this final rule?
This final rule continues to affirm that a worker is not an independent contractor if they are, as matter of economic reality, economically dependent on an employer for work. Consistent with judicial precedent and the Department’s interpretive guidance prior to 2021, the final rule applies the following six factors to analyze employee or independent contractor status under the FLSA:
(1) opportunity for profit or loss depending on managerial skill;
(2) investments by the worker and the potential employer;
(3) degree of permanence of the work relationship;
(4) nature and degree of control;
(5) extent to which the work performed is an integral part of the potential employer’s business; and
(6) skill and initiative.
The final rule provides detailed guidance regarding the application of each of these six factors. No factor or set of factors among this list of six has a predetermined weight, and additional factors may be relevant if such factors in some way indicate whether the worker is in business for themself (i.e., an independent contractor), as opposed to being economically dependent on the employer for work (i.e., an employee under the FLSA).
10. How does the final rule differ from the Department’s 2021 Independent Contractor Rule?
This final rule differs from the guidance provided in the 2021 Independent Contractor Rule in several important ways. Specifically, consistent with the approach taken by federal courts, this final rule:
To learn more about the final rule, read the DOL’s FAQs. and an analysis from ABC’s general counsel, Littler Mendelson.
ABC staff are continuing to analyze the 339-page final rule and will be offering a webinar for members in the near future. Continue to monitor Newsline for updates.
Background:
ABC strongly supported the 2021 final rule, which simplifies and clarifies the factors for determining when a worker is an independent contractor versus an employee under the FLSA. The Biden DOL froze and then rescinded the 2021 rule over the opposition of ABC and other industry associations.
In March 2021, ABC, its Southeast Texas chapter and the Coalition for Workforce Innovation filed suit against the DOL, which remains pending. In March 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 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.
In October 2022, the DOL announced a new proposed rule to rescind and replace the 2021 final rule and ABC submitted comments in opposition on Dec. 13. The DOL received approximately 55,400 comments in response to the proposed rule.
In December 2023, President Biden announced a final rule implementing Executive Order 14063, which requires federal construction contracts of $35 million or more to be subjected to controversial project labor agreements. ABC issued a statement announcing plans to challenge the new rule in court.
On Jan. 4, ABC authored a coalition letter to Congress signed by 23 organizations opposing the final rule and urging members to co-sponsor the ABC-backed Fair and Open Competition Act. In addition, Ben Brubeck, ABC vice president of regulatory, labor and state affairs, authored a Fox Business op-ed on the Biden PLA rule, which ran on Jan. 4.
ABC also urges members to contact their U.S. representative and senators to voice their opposition to the final rule and support for FOCA through the ABC Action Center.
In December 2023, ABC submitted comments as a steering committee member of the Construction Industry Safety Coalition and the Coalition for Workplace Safety in response to the Occupational Safety and Health Administration’s potential standard for Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings following its review of the Small Business Advocacy Review Panel materials and the SBAR Panel’s final report. In September, the SBAR Panel hosted six video conferences to gather input from small entity representatives. An ABC member participated as a SER during one of the video conferences. The panel’s final report was issued on Nov. 3.
CISC’s comments state, “The construction environment is inherently fluid and CISC has significant concerns with any regulatory approach that imposes prescriptive, complicated requirements on construction industry employers.
“The CISC urges OSHA to focus their regulatory approach on the key concepts of ‘Water, Rest, and Shade’ and provide construction employers the necessary flexibility to make such a standard effective. For the same reasons, the CISC reiterates their invitation for OSHA to consider a separate regulatory approach for the construction industry, as OSHA has done in other rulemakings.”
CWS’ comments state, “The CWS supports recommendations expressed in the Panel Report, and in other comments submitted to the agency, recognizing that flexibility, versus a ‘one-size-fits-all’ standard, is necessary for employers to prevent or mitigate heat-related injuries and illnesses in their workplaces the most effectively.” Read CWS’ press release.
In January 2022, ABC, as a steering committee member of the CISC, also submitted comments in response to the Advance Notice of Proposed Rulemaking on Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings.
Additional OSHA Actions:
On April 12, 2022, OSHA announced a National Emphasis Program on Outdoor and Indoor Heat-Related Hazards, which sets out a targeted enforcement effort and reiterates OSHA’s compliance assistance and outreach efforts.
On July 27, 2023, OSHA issued a heat hazard alert to remind employers of their obligation to protect workers against heat illness or injury in outdoor and indoor workplaces. The agency also announced that OSHA will intensify its enforcement where workers are exposed to heat hazards, with increased inspections in high-risk industries like construction and agriculture. These actions will fully implement OSHA’s National Emphasis Program on heat, announced in April 2022, to focus enforcement efforts in geographic areas and industries with the most vulnerable workers.
On Sept. 29, OSHA issued new resources to protect workers from the effects of heat.
ABC strongly supports worker safety and protection from heat injury and illness, while maintaining flexibility for the fluid nature of the construction environment. Employers play a key role in providing training and awareness regarding heat protection, and ABC will continue to support members in ensuring preparedness for heat-related issues through a wide range of resources.
Learn more about OSHA’s Heat Illness Prevention Campaign
On Dec. 14, 2023, the Biden administration announced a U.S. Department of Labor proposed rule that would make significant and controversial revisions to the National Apprenticeship System.
Additionally, the rule gives the U.S. Department of Labor’s Office of Apprenticeship and State Apprenticeship Agencies enforcement authority over labor disputes, a role already performed by the NLRB. Ultimately, the proposed regulation applies more bureaucracy to a system in need of flexibility when responding to pressing workforce needs.”
One result of DOL’s regulations will be fewer job-training opportunities for minorities. The rule will also undercut the Administration’s industrial policy and climate agenda. The Inflation Reduction Act’s myriad green energy tax credits require employers to utilize apprentices from government-approved programs. Good luck finding them.
President Biden’s message to non-union apprentices: You’re fired.”
In addition, ABC will submit comments on the proposed rule and make recommendations that will help create a final rule that can deliver value to taxpayers, the construction industry workforce and employer participants in the government-registered apprenticeship system.
Public comments on the DOL proposal must be submitted in early March, which is 60 days after the proposal is expected to be published in the Federal Register later this week.
Background