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ABC Newsline
The U.S. Small Business Administration’s Office of Advocacy released a new guidance document to help small businesses understand their role and participate in the federal rulemaking process.
According to an SBA news release, the document, titled “A Basic Guide to Federal Rulemaking and Small Business,” helps small businesses understand their role in the federal rulemaking process, outlines steps in the development of a new regulation, explains how to express concerns or support for a proposed rule, and provides information on how public comments affect the final rule.
In addition to the guidance document, SBA’s Office of Advocacy provides businesses with resources on the federal rulemaking process, which include regulatory alerts and information on the agency’s regional regulatory reform roundtables.
More resources from the Office of Advocacy can be found on the SBA website.
On Oct. 15, ABC submitted comments as part of the Construction Industry Safety Coalition on the Occupational Safety and Health Administration’s Request for Information on Table 1 of the agency’s Respirable Crystalline Silica Standard for Construction.
According to an OSHA news release, the agency is seeking feedback on its current and any additional engineering and work practice control methods to effectively limit exposure to silica for the equipment and tasks currently listed on Table 1 and other construction equipment and tasks that generate silica that it should consider adding to Table 1.
“CISC applauds the agency for issuing this RFI and has been pushing the agency to do so for more than two years. Expanding Table 1 and otherwise improving compliance with the rule is of paramount importance to CISC member associations and contractors across the country. Based upon the feedback the CISC has received from contractors—both large and small—compliance with the rule remains challenging. CISC encourages OSHA to move quickly with rulemaking to permit contractors additional compliance options and tools,” according to the comment letter .
Additionally, CISC urged OSHA to consider the following improvements to the respirable crystalline silica rule:
1. Add an “under one hour” column, row or table that provides equipment/tasks and controls for short-term activities. Such an allowance would provide contractors more flexibility and increase the number and types of control options available.
2. Add dry cutting with vacuum attachments to Table 1 for stationary masonry saws and handheld power saws, as the data shows that exposures to this equipment with these controls are under the PEL. OSHA should also allow for the use of standard shop vacuums as part of engineering controls, based on recent data from the National Institute for Occupational Safety and Health. In addition, OSHA should explore the use of floor and pedestal fans and air scrubbers as simple compliance solutions either on their own or in conjunction with other control measures.
3. Add masonry scrubbers, wire saws and wall saws to Table 1 based on data showing low exposures when using this equipment.
ABC will continue to keep members informed of any developments on the silica rulemaking in Newsline.
ABC member and 2003 national chair Eddie Rispone, founder of ISC Contractors, will be the Republican candidate facing off against incumbent Gov. John Bel Edwards (D) in the Nov. 16 general election for Louisiana, according to the results of the state’s Oct 12 primary.
Louisiana has a unique jungle primary system in which all qualifying candidates of all political parties appear on a single ballot for the primary election. A runoff is then triggered if no candidate achieves a simple majority.
Gov. Edwards received just 46.6% of the votes, failing to reach the 50% necessary to beat the five other candidates. Rispone came in second, earning 27.4% of the vote, while U.S. Rep. Ralph Abraham (R-5) earned 23.6% of the vote.
The Louisiana election is expected to be highly contested, as it is the GOP’s only opportunity to grow the number of states with Republican governors from 27 to 28. If Rispone wins, the Louisiana governor’s mansion and state legislature will be GOP-controlled.
President Trump held a rally in Lake Charles on Oct. 11 to help get out the vote in support of Rispone and Abraham. The president is expected to be involved in this race and a handful of other races around the country this year. Click here for more information on the states and elections to watch this year.
ISC Contractors is one of the largest merit shop specialty contracting firms in the U.S. industrial market. To learn more about Eddie Rispone and this general election, visit EddieForGovernor.com.
On Oct. 9, the Honolulu City Council passed a highly contentious ordinance that will require the city to negotiate a “community workforce agreement” with the Hawaii Building and Construction Trades Council, the Hawaii Construction Alliance and their affiliated labor unions for certain public works projects. The city says the ordinance will apply to “critical city projects” in which the city has a particular interest in timely and cost-efficient project completion. The CWA will largely apply to critical road, wastewater, drainage and park improvement projects.
The CWA, which is also referred to as a project labor agreement, is a collective bargaining agreement between the City of Honolulu and local labor unions that governs the terms and conditions of employment on all eligible projects. Bill 37 defines eligible projects as “any large-scale public works project, including any road, wastewater, drainage, building infrastructure or park improvement project, in which there is a contract for construction procurement in excess of $2,000,000.”
Effectively, Bill 37 will prevent nearly two-thirds of the licensed contractors in the State of Hawaii from using their own skilled workforce to fulfill projects covered by the City of Honolulu’s ordinance. In fact, merit shop contractors will likely refrain from bidding on projects covered by the legislation, which will drive up the cost of publicly funded projects. Research conducted by the Beacon Hill Institute consistently demonstrates that mandating CWAs and PLAs drives up the cost of construction projects by 12-18%.
Although the ordinance is expected to be signed by Mayor Kirk Caldwell, questions remain over the legality of Bill 37. In testimony, opponents of the bill noted that the ordinance may violate both state and federal laws. Representatives from ABC Hawaii questioned whether the city’s ordinance would violate the Hawaii Procurement Code, and at the federal level ABC Hawaii argued that the law would infringe on a 2018 decision by the U.S. Supreme Court in Janus v. AFSCME, which states that public sector union fees violate employees’ First Amendment right to free speech.
The following companies have been awarded Accredited Quality Contractor status by ABC.
The AQC program recognizes and honors construction firms that document their commitment to excellence in five key areas of corporate responsibility: quality, safety, craft and management education, talent management and diversity and community relations. A company that meets the criteria set forth in the program and has earned STEP Gold, Platinum or Diamond status in ABC’s safety management system is formally designated an Accredited Quality Contractor.
Companies that achieve the AQC credential receive:
If you too would like to be honored with this prestigious accreditation, applications are due Nov. 1. For more information, visit abc.org/aqc or contact [email protected].
On Oct. 4, the National Labor Relations Board announced an extension of the comment period on its proposed rule that would amend the NLRB’s representation election regulations. The deadline for submitting comments has been extended from Oct. 11 to Dec. 10, 2019.
According to an NLRB news release, the proposal, officially titled Representation-Case Procedures: Election Bars; Proof of Majority Support in Construction Industry Collective-Bargaining Relationships, includes amendments to the Board’s blocking charge policy, voluntary recognition bar and Section 9(a) recognition in the construction industry.
ABC’s general counsel, Littler Mendelson P.C., published an analysis with more information on the NLRB’s proposed rule.
ABC plans to submit comments to the NLRB. The public may submit comments on the proposed rule here.
On Sept. 27, the DOL issued a final rule on overtime, officially named Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees, which updates and revises the “white-collar” overtime exemption regulations under the Fair Labor Standards Act. The final rule goes into effect on Jan. 1, 2020. To learn more about the final rule, ABC members may register for the webinar, What Does the New DOL Final Overtime Rule Mean for Construction Industry Employers?, which will be presented on Oct. 29 at 2 p.m. ET.
Overall, the final overtime rule addresses many of the concerns expressed by ABC in its May 21 comment letter in response to the department’s March 22 proposed rule.
The final rule increases the minimum salary level for exemption from $455 per week ($23,660 annualized) to $684 per week ($35,568 annualized). This level is lower than the threshold of $47,476 in the Obama-era 2016 overtime final rule. In Nov. 2016, a federal court blocked the Obama rule from taking effect nationwide.
In addition, the final rule increases from $100,000 to $107,432 the total annual compensation required for employees to qualify under the shorter highly compensated test. The 2019 proposed rule raised the highly compensated salary threshold to $147,414 per year, which ABC opposed. ABC’s comment letter argued that the DOL should retain the highly compensated salary threshold at the 2004 level of $100,000.
The final rule also allows employers to use commissions, bonuses, and other non-discretionary incentives that are paid at least annually to satisfy up to 10% of the standard salary level, in recognition of evolving pay practices. According to a Littler Mendelson P.C. analysis, “If incentive payments fall short by even $1, however, employers will owe overtime pay to shorted employees for the entire prior year. Under the final rule, employers will have only a single pay period for a final make-up payment to ensure exempt employees receive the full $35,568 for the year.” ABC’s comment letter argued that the 10% cap should be lifted, or at a minimum raised to 25%.
To learn more about the overtime rule, see the following DOL’s resources Fact Sheet, FAQs, and Small Entity Compliance Guide. Also visit the DOL website on overtime.
On Sept. 26, the U.S. Senate voted 53-44 to confirm Eugene Scalia as secretary of labor.
Before he was sworn in on Sept. 30, Scalia was a partner at Gibson, Dunn & Crutcher in Washington, D.C., where he co-chaired the firm’s Administrative Law and Regulatory Practice Group, and previously co-chaired the Labor and Employment Practice Group for 12 years. Previously, Scalia served various roles within the administrations of Presidents George W. Bush, George H.W. Bush and Ronald Reagan.
The confirmation vote for Scalia, who was nominated by President Trump on Sept. 11, came two days after the Senate Committee on Health, Education, Labor and Pensions voted to advance his nomination to the full Senate.
In a letter sent to the Senate, ABC urged senators to support Scalia’s confirmation and stated it will be considered a “Key Vote” for its scorecard on the 116th Congress.
On Sept. 24, in a 4-3 decision, the Ohio Supreme Court upheld ABC-supported legislation passed by the Ohio Legislature that prohibited residency requirements for contractors working on public construction projects.
The City of Cleveland was challenging a state law, HB 180, which was passed by the state legislature in 2016 in response to numerous municipalities across the state implementing various employment quotas on government contractors. The city had passed an ordinance in 2003, the Fannie Lewis Law, mandating that at least 20% of the workers on any city contract of $100,000 or more be Cleveland residents.
Local-hire requirements typically require a certain percentage of a project’s construction workforce to reside in the locality where the project is being financed or built, and the scope of these requirements may apply to specifically to minorities, women, veterans or other underrepresented populations in the construction workforce and community. While often well-intentioned, these policies usually create unintended negative consequences, including increased construction costs, decreased productivity, and, as was the case in the Cleveland vs. State, costly litigation.
“If communities are serious about developing their local construction workforce, they should partner with proven construction craft trainers, like ABC, and work to promote careers in construction, recruit interested individuals and then support their enrollment in U.S. Department of Labor-certified apprenticeship training programs,” said ABC of Ohio’s Government Affairs Director, Bryan C. Williams, testifying in support of HB 180 before the state House of Representatives Commerce and Labor Committee in May, 2015. “Until then, a local hiring mandate will not be achievable.”
The City of Cleveland’s challenge centered on a section of the Ohio Constitution, Article I, Section 34, that states “laws may be passed … providing for the comfort, health, safety and general welfare of all employees." Justice Sharon Kennedy disagreed with the City of Cleveland’s assertation in her opinion, stating, “By reserving work for Cleveland’s residents, the Fannie Lewis Law directly impacts hiring, the most basic condition of employment, for workers on public-improvement projects…In doing so, the City of Cleveland has legislated within a field subject to regulation by the General Assembly pursuant to Article II, Section 34.”
Local hiring mandates have also been challenged in several jurisdictions under the protection of the U.S. Constitution. Applying the Privileges and Immunities Clause, state hiring preferences have been declared unlawful in Alaska, Illinois, Massachusetts, Missouri, New Hampshire, New Jersey, New York, Pennsylvania and Washington, while local hiring preferences have also been struck down for the same reason. Additionally, residential hiring preferences have also been found to violate the Commerce Clause of the Constitution where they have been enacted outside the government’s role as a market participant.
On Sept. 25, the U.S. House Committee on Education and Labor held a markup on H.R. 2474, the Protecting the Right to Organize, or PRO, Act. During the markup, representatives debated the merits of the bill and sought to add and remove provisions. Each amendment submitted by Democrats passed, while those submitted by Republicans failed via a party line vote.
In a letter sent to the House Committee on Education and Labor regarding the markup, ABC encouraged members of the committee to oppose the PRO Act, as the bill would drastically reshape the construction industry and America’s workplaces by stripping employees and employers of their constitutionally protected rights and hand power over to politically powerful union bosses.
Additionally, the ABC-led Coalition for a Democratic Workplace submitted a letter to the committee in opposition to the legislation. In June, ABC joined with 147 signatories from various sectors of the economy and regions of the country in sending a CDW letter to the U.S. House of Representatives outlining the most egregious provisions of the bill, its infringements on the rights of employees and employers alike, and the negative repercussions it would have on the economy as a whole.
ABC opposes the PRO Act and will continue to provide updates in Newsline as it moves through the legislative process in the U.S. House of Representatives.