On June 12, ABC submitted comments to the U.S. Department of Labor’s Wage and Hour Division in support of its proposal to clarify and update the regulations governing regular rate requirements under section 7(e) of the Fair Labor Standards Act and offered the Department further suggestions for improvement. These regulations define what forms of payment employers include and exclude in the "time and one-half" calculation when determining workers' overtime rates.

In its comment letter, ABC explained that it agrees with the Department’s assessment that it is past time for clarification of how Section 7(e) of the FLSA applies to compensation in the 21st century workplace. Updating the regulations is essential to clarify the types of employee benefits, many of which did not exist when the previous rules were written, that should be excluded from the regular rate. Clarification will encourage more employers to provide benefits such as tuition reimbursement, public transportation subsidies, child care services and numerous similar benefits discussed below.

To assist DOL in this rulemaking, ABC surveyed its member companies to determine what kinds of perks, benefits or other miscellaneous payments are currently being offered to employees in the construction industry.  The survey found that large numbers of ABC member employers reward their employees with discretionary bonuses, give payouts to employees of unused vacation and sick leave, offer their employees tuition reimbursement and repayment of student loans and provide other critical employee benefits that DOL is proposing to exclude from the regular rate of pay.

DOL’s WHD issued the Regular Rate Under the Fair Labor Standards Act proposed rule on May 29. According to the proposal, DOL is proposing updates to its regulations governing regular rate for the first time in more than 50 years in order to provide clarity to employers and employees and better reflect the 21st century workplace. For more information, see DOL’s press release and website.

The U.S. Department of Labor’s Occupational Safety and Health Administration published a new webpage that provides various resources for workers on suicide prevention.

Resources on the OSHA webpage include contact information for the National Suicide Prevention Lifeline, as well as information from the Center for Construction Research and Training, the Construction Industry Alliance for Suicide Prevention, the U.S. Department of Veterans Affairs and more.

According to the OSHA website, suicide is a serious public health concern that can have lasting harmful effects on individuals, families, workplaces and communities. Additionally, men in the construction and extraction industry had the highest rate of suicide among all occupational groups in the United States in 2015, according to the U.S. Center of Disease Control and Prevention. From 2012 to 2015, the rate of suicide among male construction workers increased more than 20%, based on deaths per 100,000 males.  

ABC was one of 17 member organizations of the CIASP that met in October 2018 to collaborate on how to equip companies to better address mental health issues and reduce the risk of suicide in the construction industry. Additional CIASP resources on suicide prevention can be found on the Alliance's website.

Of the nation's top 25 construction companies, 24 are ABC members, according to Engineering News-Record's recently published annual list of the Top 400 Contractors. These successful contractors were ranked based on 2018 revenue.

Bechtel (#1)
Fluor Corp. (#2)
Turner Corp. (#3)
AECOM (#4)
The Whiting-Turner Contracting Co. (#5)
Kiewit Corp. (#6)
Skanska USA (#7)
PCL Construction Enterprises Inc. (#8)
McDermott (#9)
DPR Construction (#10)
Gilbane Building Co. (#11)
Clark Group (#13)
Sto Building Group Inc. (#14)
Hensel Phelps (#15)
Mortenson (#16)
Balfour Beatty US (#17)
The Walsh Group Ltd. (#18)
Lendlease (#19)
Swinerton (#20)
McCarthy Holdings Inc. (#21)
JE Dunn Construction Co. (#22)
Suffolk (#23)
Granite Construction Inc. (#24)
Brasfield & Gorrie LLC (#25)

According to ENR, “The construction market has been growing steadily for nearly 10 years, with no signs of stopping. Industry veterans know the market can’t sustain this pace forever, but they are focused on the opportunities in front of them.”

Nevada Gov. Steve Sisolak (D) recently signed into law two pro-union pieces of legislation that will revise construction provisions on public works projects. The first, AB 136, makes three substantive changes to the states prevailing wage law, including: lowering the threshold for projects that qualify for prevailing wages from $250,000 to $100,000; removing the prevailing wage exemption for charter schools; and eliminating a statute that allows prevailing wages for public school districts and the Nevada System of Higher Education to be paid at 90% of what is required for other public works projects.

Additionally, Gov. Sisolak signed into law SB 231, which overturns a 2015 law that prohibited government-mandated project labor agreements on public and publicly assisted projects. The bill also repealed a provision that states public bodies may not award a grant, tax abatement, tax credit or tax incentive to a contractor that enters into a contract with a labor organization. These changes will allow public entities in Nevada to enter into union-only PLAs, as well as exclude four out of five workers in the state who have chosen not to join a labor union from working on taxpayer-funded construction projects. 

Republican lawmakers, with the backing of then-Gov. Brian Sandoval (R), made sweeping changes to labor laws in 2015 after taking control of the Nevada Senate and Assembly in the 2014 midterm elections. In 2016, Democrats regained control of the legislature but were unable to pass similar pro-union legislation over vetoes by Gov. Sandoval. The election of Gov. Sisolak in 2018, who ran on an agenda that promised changing various state labor laws, paved the way for the legislature to revive attempts at passing prevailing wage reform and PLA neutrality repeal. 

Both measures passed the Senate and Assembly on a party line vote and were signed by Gov. Sisolak on May 28, 2019. AB 136 and SB 231 take effect July 1, 2019.

On May 28, as part of the Partnership for the Employer-Sponsored Coverage, ABC signed on to a letter to the U.S. House Energy and Commerce Committee supporting legislation to combat surprise billing in health care and providing key insight on the committee’s draft proposals.

Earlier this month, the committee released a draft bipartisan proposal, the No Surprises Act, which would protect patients from surprise costs by prohibiting balance billing in all emergency services, increase transparency so consumers can better understand their insurance coverage and set a minimum payment standard for out-of-network claims disputes, among other proposals.

ABC believes it is crucial to maintain affordable employer-based coverage for companies and urges Congress to maintain this bipartisan effort to address rising health care costs for ABC members and their employees.

ABC’s Chesapeake Shores, Greater Baltimore and Metro Washington chapters collaborated with the University of Maryland, Baltimore to celebrate the graduation of 138 industry-registered construction apprentices representing six trades during a ceremony on May 22. 

During the past four years, the graduates have documented 8,000 on-the-job training hours, completed 576 hours of classroom education and maintained strict attendance standards, all the while honing the skills for their successful careers in the construction trades. 

Tony Rader, the 2019 ABC National chair and vice president of telecom for National Roofing Partners, Coppell, Texas, addressed the graduates during the ceremony. 



“As ABC National Chairman, it is extremely exciting to travel around the country to participate in events just like this,” Rader said. “The future is bright for these graduates, and we can’t wait to see their contributions to our industry.” 

The ABC chapters look forward to another year of registered-apprenticeship program growth and continued opportunities for collaboration.

On May 22, the Trump administration released its Spring 2019 Unified Agenda of Regulatory and Deregulatory Actions. The agenda lists upcoming rulemakings and other regulatory actions from each agency that the administration expects to publish through the end of the year and into 2020. 

U.S. Department of Labor

In the Spring Regulatory Agenda, DOL’s Employment and Training Administration announced plans to issue the long-awaited apprenticeship proposed rule, titled Apprenticeship Programs, Labor Standards for Registration, Amendment of Regulations, in June 2019. This proposed rule comes at the instruction of President Trump’s Executive Order 13801, Expanding Apprenticeships in America, which asks the secretary of labor, in consultation with the secretaries of education and commerce, to consider proposing regulations that establish guidelines for third parties to certify industry-recognized apprenticeship programs. 

ABC was pleased to see that for the first time in its regulatory agenda, the Occupational Safety and Health Administration announced that it plans to issue a proposed rule to codify its memorandum clarifying its position on workplace safety incentive programs and post-incident drug testing included in the Obama administration’s 2016 Improve Tracking of Workplace Injuries and Illnesses final rule, also known as the Electronic Injury Reporting and Anti-Retaliation final rule. The agency expects to release the proposal in September 2020. Additionally, OSHA soon expects to issue a request for information to solicit public feedback on the 2016 silica final rule to determine if revisions to Table 1 may be appropriate.

The Wage and Hour Division will continue to review comments submitted to the department in response to its overtime, regular rate and joint-employer under the Fair Labor Standards Act proposed rules. WHD did not indicate in the Spring Regulatory Agenda when it plans to finalize any of the three proposals. Also, for the first time, WHD announced that it plans to issue a request for information on the Family and Medical Leave Act of 1993 to solicit comments on ways to improve its regulations to better protect and suit the needs of workers and reduce administrative and compliance burdens on employers. The department plans to issue the RFI in April 2020. 

In June, the Employee Benefits Security Administration expects to finalize its proposed rules on Health Reimbursement Arrangements and Association Retirement Plans. ABC submitted comments in support of both EBSA proposals in December 2018. 

For more information on upcoming DOL rulemakings, see the department’s Spring 2019 agenda.

National Labor Relations Board

In addition to proceeding with its proposed rule on the joint-employer standard, the NLRB will consider rulemaking on its current standards for blocking charges, voluntary recognition and the formation of Section 9(a) bargaining relationships in the construction industry. Additionally, the NLRB will be revising its representation election regulations, with a specific focus on amendments to the Board’s representation case procedures adopted by the 2014 “ambush” election final rule. The item is currently listed as a long-term action.

Environmental Protection Agency

The EPA and U.S. Army Corps of Engineers will continue with plans to repeal the 2015 Clean Water Rule, also known as the Waters of the United States final rule, and recodify the regulatory definition that existed prior to the 2015 final rule, with a final rule expected in August 2019. The agencies also expect to issue a final rule to redefine WOTUS in December 2019. 

Equal Employment Opportunity Commission

The EEOC intends to issue a set of proposed rules in December 2019 to amend its regulation of employer-sponsored wellness programs. In August 2017, the U.S. District Court for the District of Columbia invalidated the EEOC’s final regulations on the operation of voluntary wellness programs under the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act, and ordered the EEOC to reconsider the rulemakings.

The U.S. Army Corps of Engineers will be holding stakeholder webinars in June 2019 to provide an overview of its actions under the Revolutionize USACE Civil Works initiative.

In conjunction with the Trump administration’s Infrastructure Initiative, USACE has undertaken the Revolutionize USACE Civil Works initiative with the intent to speed up business, save money and complete critical infrastructure projects sooner. Specifically, the initiative has three objectives: to accelerate project delivery, transform project financing and budgeting and improve permitting and regulation reform.

USACE will be hosting webinars on June 20 and June 28 from 2-3 p.m. EST to provide an overview of the actions under Revolutionize USACE Civil Works, obtain feedback on efforts to date and gain input on activities going forward.

For more information on the Revolutionize USACE Civil Works initiative, visit the USACE website. 

ABC announced its support of S. 904, the Voluntary Protection Program Act (S. 904), introduced by Sen. Mike Enzi (R-Wy).  S. 904 would make the Department of Labor’s Voluntary Protection Program a permanent program.

“ABC members know exceptional jobsite safety and health practices are inherently good for business, the industry, the communities ABC members build and our most important asset—our workforce. ABC strongly believes that employers committed to safety should be viewed as partners in achieving safer workplaces, and that Occupational Safety and Health Administration’s cooperative programs, including the Voluntary Protection Program, should be promoted.”

On May 21, ABC submitted comments to the U.S. Department of Labor’s Wage and Hour Division on its proposal to update and revise the 2016 “white collar” overtime exemption regulations under the Fair Labor Standards Act. 

On March 22, 2019, DOL issued the new proposal, officially named Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees, to update and revise the “white-collar” overtime exemption regulations. Among other changes, the Department is proposing to raise the current minimum salary for exemption from $23,660 to $35,308 per year. This level is lower than the threshold of $47,476 included in the Obama-era 2016 overtime final rule. If finalized, the proposal will replace the Obama administration 2016 final rule. 

ABC’s comment letter states, “ABC is pleased the new proposed rule addresses many of the concerns that ABC expressed in comments in response to the Department’s 2017 Request for Information, including retaining in large part the 2004 standard salary methodology, adopting only one standard salary level and not imposing automatic indexing of the salary level test. However, we continue to have concerns regarding the data set being used to set the minimum salary, as well as the increase in the highly compensated salary level and the 10% rule for bonuses.”  Read the comment letter to learn more about ABC’s position. 

ABC hopes DOL will move swiftly to finalize this proposal. 

Background on the Overtime Rules

On May 23, 2016, DOL issued the Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees final rule, which would have changed the federal exemptions to overtime pay under the Fair Labor Standards Act for “white collar” workers by doubling the current minimum salary level for exemption from $23,660 to $47,476 per year and automatically increasing it every three years. Throughout the rulemaking process, ABC was an active participant and urged the Department to withdraw the 2015 proposed rule.

Before the Obama administration 2016 final rule went into effect, it was vacated and permanently enjoined on a nationwide basis by the federal district court for the Eastern District of Texas in the case of Nevada v. Department of Labor.

On July 26, 2017, the Trump administration issued a Request for Information, which sought input on the 2016 final rule, specifically the minimum salary level required for exempt status. In its Sept. 25, 2017, comment letter on the RFI, ABC urged DOL to comply with the district court’s decision and immediately rescind the unlawful 2016 rule. Further, assuming that a new minimum salary standard would be adopted, ABC argued that it should be established by applying the same methodology that was used by the Department in 2004. 

On March 22, 2019, DOL issued a new proposal to update and revise the “white-collar” overtime exemption regulations, which ABC submitted comments on May 21.

ABC will continue to provide status updates on the overtime final rule in Newsline.