TEST Paragraph
Awards
Events/Products/Programs
Legislation
Politics and Policy
Regulations
Safety
State/Local News
Workforce Development
ABC Newsline
The U.S. Department of Labor’s Wage and Hour Division recently announced a series of virtual compliance seminars to provide information on prevailing wage requirements for federally funded construction and service contracts. Each seminar will offer separate sessions focused on Davis-Bacon Act and Service Contract Act compliance.
Seminars will take place on the following dates in 2025:
Additionally, the final seminar for 2024 will take place Nov. 13-14.
Registration via the DOL’s website is required to attend the seminars.
Over the past two years, ABC’s Free Enterprise Alliance has spent more than $5 million dollars to fund issue advocacy efforts and, separately, get-out-the-vote campaigns in key states.
FEA educates elected officials and the public about the importance of fair and open competition through digital ads, videos, text messages and more.
In addition, ABC PAC has invested nearly $2 million in direct support of federal candidates and campaign committees who champion free enterprise and fair and open competition. ABC has increased its spending this cycle, continuing to be one of the nation’s most politically engaged trade associations.
FEA has widened its issue advocacy campaign outreach, with ads playing in over 34 key states and congressional districts throughout the country to educate voters about ABC’s top issues. Some top areas of focus include Arizona, Florida, Maryland, Montana, North Carolina’s 1st Congressional District, Ohio’s 13th Congressional District, Nebraska and Pennsylvania. Additionally, FEA delivered a seven-figure spend to educate voters on current labor laws imposed by the Biden-Harris administration. FEA’s important issue advocacy messaging was delivered to the public via digital advertising and text messages.
View ads FEA has released ads in both English and Spanish, which are live in the following states and congressional districts:
Alabama—02
Alaska-At-Large
Arizona
California—09
Iowa—03
Michigan
Nebraska
Nevada
North Carolina—01
Ohio—13
Pennsylvania
Texas
Fighting for ABC’s legislative principles, such as free enterprise and fair and open competition, has always been and will continue to be the main goal of FEA’s issue advocacy effort. Here are some examples:
Fighting Against Vice President Harris’ Restrictive Labor Policies
America Cannot Afford the PRO Act
Creating More Jobs in Arizona
Fiscal Responsibility in Michigan
Separately, ABC PAC has worked to directly support candidates to ensure a merit-shop majority in the U.S. Senate and House of Representatives. ABC has supported hundreds of campaigns, PACs, committees and state parties with its record spend this cycle.
On Wednesday, Nov. 6, the ABC National government affairs team will provide a post-election analysis and discuss key campaign takeaways from the biggest races of the year in its members-only post-election breakdown webinar from 3-4 p.m. ET. Members will have the opportunity to ask questions on races across the country. Register today.
ABC continues to fight against the Biden-Harris administration’s anti-growth and oppressive regulatory agenda, which creates significant uncertainty and barriers to job creation.
ABC’s legal challenges against the Biden-Harris administration’s final rules include:
Victory
NLRB: Joint Employer
On July 19, 2024, the National Labor Relations Board moved to withdraw its appeal of the U.S. District Court for the Eastern District of Texas’ decision to vacate the 2023 Joint-Employer final rule, which means the court’s favorable decision will become final. The Board appealed the decision on May 7.
On March 8, 2024, the district court vacated the 2023 final rule. Under the court’s decision, the ABC-supported 2020 Joint-Employer 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 acting arbitrarily and capriciously in violation of the Administrative Procedure Act.
ABC is pleased the Board decided to withdraw its appeal of the court’s decision and that the court’s ruling to block the NLRB’s radical and overbroad joint-employer standard is now final. The 2023 final rule would have disrupted long-established, efficient operational processes that are followed by construction service providers who work together to build America. And it clearly would have had a harmful effect on a significant segment of the construction industry: small businesses. Because the ABC-supported 2020 final rule remains in effect, contractors will be better able to work and coordinate with multiple employers without fear of being unexpectedly and unfairly found to be joint employers.
FTC: Ban on Noncompete Agreements
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.
As expected, on Oct. 18, the FTC appealed the court’s Aug. 20 decision. ABC will continue to monitor the litigation and provide any updates in Newsline. For now, though, the Aug. 20 decision will remain in effect during the pendency of the appeal.
On July 3, the U.S. District Court for the Northern District of Texas 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.
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.
Pending Federal Lawsuits
FAR Council: Use of Project Labor Agreements for Federal Construction Projects
On Feb. 4, 2022, President Joe Biden signed Executive Order 14063, Use of Project Labor Agreements for Federal Construction Projects. Effective Jan. 22, 2024, following a multiyear rulemaking by the Federal Acquisition Regulatory Council, federal agencies now require every prime contractor and subcontractor on a federal construction project of $35 million or more performed within the United States to sign a PLA as a condition of winning a taxpayer-funded contract.
On March 28, 2024, ABC and its Florida First Coast chapter filed suit against the federal government seeking to overturn the final rule, asserting that President Biden lacks the legal and constitutional authority to impose the mandate. As federal contractors await a decision, ABC members are filing bid protests against federal solicitations containing PLA mandates on a case-by-case basis.
When mandated by governments, PLAs increase construction costs to taxpayers by 12% to 20%, reduce opportunities for qualified contractors and their skilled craft professionals and exacerbate the construction industry’s worker shortage of more than half a million people in 2024.
PLA mandates are bad public policy because they effectively exclude almost 90% of the U.S. construction workforce who do not belong to a union from building taxpayer-funded projects.
ABC and a diverse coalition of construction industry stakeholders and taxpayer watchdogs will continue to oppose this anti-competitive and inflationary final rule and call on the Biden-Harris administration to instead promote policies that will welcome fair and open competition from all contractors to ensure the best value possible for taxpayer investments
Learn more about government-mandated PLAs.
DOL: Updating the Davis-Bacon and Related Acts Regulations
On Aug. 23, 2023, the U.S. Department of Labor issued its final rule, Updating the Davis-Bacon and Related Acts Regulations. The regulation’s drastic revisions to existing rules regarding government-determined prevailing wage rates that must be paid to construction workers on federal and federally assisted construction projects funded by taxpayers took effect on Oct. 23. All contracts entered into after Oct. 23 are subject to the new rule’s provisions, and in certain situations the rule may apply to preexisting contracts.
On Nov. 7, 2023, ABC and its Southeast Texas chapter announced the filing of a complaint in the U.S. District Court for the Eastern District of Texas, challenging the DOL’s final rule.
In a separate lawsuit by the Associated General Contractors of America, on June 24, 2024, the U.S. District Court for the Northern District of Texas granted a nationwide preliminary injunction that blocks some provisions of the final rule. These provisions include those expanding coverage to include manufacturing facilities miles away from projects and delivery truck drivers spending any amount of time on a jobsite, as well as the imposition of the rule on already executed contracts, among other things.
ABC’s pending federal lawsuit targets these and other controversial provisions in the DOL’s extreme overhaul of more than 50 Davis-Bacon Act regulations that undermine commonsense reforms put in place by the Reagan administration.
Far from “updating” the DOL’s enforcement of the Davis-Bacon Act, the final rule returns to failed policies of the 1970s and unlawfully expands coverage of prevailing wage requirements onto new projects and industries and increases its regulatory burden on small construction contractors working on federally funded contracts. The DOL’s final rule forces ABC to take legal action to address its numerous illegal provisions and protect its members, the free market and taxpayers from the devastating impacts of this regulation.
Learn more about the DOL’s Davis-Bacon and Related Acts final rule.
DOL: Worker Walkaround Representative Designation Process
On April 1, 2024, OSHA issued 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. The final rule went into effect on May 31.
On May 21, ABC joined the U.S. Chamber of Commerce and a coalition of business groups in filing a lawsuit in the U.S. District Court for the Western District of Texas, Waco Division against OSHA’s final rule.
OSHA’s overreach does nothing to promote workplace health and safety, but instead pushes the Biden-Harris administration’s “all-of-government” agenda to encourage unions and collective bargaining.
ABC repeatedly told OSHA there is no business case for this rule and no benefit during a compliance inspection. OSHA can have a bigger impact on jobsite safety by fostering positive partnerships with employers and promoting safety practices that produce results. Such best practices can be found in ABC’s 2024 Safety Performance Report, which found top-performing contractors that participate in ABC’s STEP Safety Management System® are nearly six times safer than the industry average.
Learn more about the OSHA Worker Walkaround final rule.
DOL: Independent Contractor
On Jan. 10, 2024, the DOL’s Wage and Hour Division issued 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 went into effect on March 11.
Thereafter, 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 5th 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 so that the district court may consider whether the 2024 final rule complies with the APA 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 withdraw the 2021 final rule. The court vacated these efforts.
On March 5, ABC, its Southeast Texas chapter, the Coalition for Workforce Innovation and five other organizations filed an amended complaint in the U.S. District Court for the Eastern District of Texas, arguing that the 2024 independent contractor final rule is unlawful and a violation of the APA.
Replacing the commonsense 2021 final rule was the wrong move by the DOL. The 2024 final independent contractor rule is confusing, vague and unworkable and will harm construction workers classified as independent contractors because they will lose crucial opportunities for work. Further, the difficult-to-interpret standard strips independent contractors of basic freedoms and rights to choose how they work.
Learn more about the DOL’s independent contractor final rule.
DOL: Overtime
On April 26, 2024, the DOL issued its final rule on overtime, which will change overtime regulations under the Fair Labor Standards Act. The final rule increases the minimum salary threshold for exemption in two phases: from the current level of $35,568 to $43,888 on July 1, 2024, then to $58,656 on Jan. 1, 2025. In addition, the threshold for highly compensated employees was increased from the current level of $107,432 to $132,964 on July 1, 2024, and then to $151,164 on Jan. 1, 2025. Salary thresholds will then be automatically updated every three years, regardless of economic circumstances.
On May 22, ABC joined a coalition of business groups in filing a lawsuit in the U.S. District Court for the Eastern District of Texas, Sherman Division against the DOL’s final rule.
The DOL’s 2024 final rule will disrupt the entire construction industry, specifically harming small businesses, as the rule will greatly restrict employee workplace flexibility in setting schedules and hours, hurting career advancement opportunities.
Further, the rule’s radical increase in the salary threshold for exemption will further complicate the current economic outlook. Multiple industries, like construction, are grappling with uncertain economic conditions such as inflation, supply chain disruptions, high materials prices and workforce shortages, all of which push operational costs ever higher. Specifically, ABC estimates that the construction industry must hire more than half a million additional workers in 2024 to meet demand.
Learn more about the DOL’s overtime final rule.
Continue to monitor ABC’s legal challenges by visiting ABC’s Regulatory Roundup, Regulatory Resource Hub on Final Rules and Newsline.
On Oct. 15, the U.S. Department of Defense issued a final rule establishing its Cybersecurity Maturity Model Certification Program requiring federal contractors and subcontractors competing for DOD contracts to demonstrate continued compliance with a range of cybersecurity measures in order to maintain eligibility for performing and winning new federal awards.
The new requirements apply to all contractors and subcontractors on DOD projects that process, store or transmit information on contractor servers that meet the standards for Federal Contract Information or Controlled Unclassified Information.
Requirements vary from a self-assessment of compliance with cybersecurity measures to triennial assessment and certification of compliance by third-party contractors or the DOD, depending on the data involved in a specific contract.
According to analysis by Wiley’s cybersecurity legal practice group, “The final rule also offers some clarity for contractors about the security requirements they will need to address under CMMC 2.0. The final rule incorporates by reference the security requirements in certain existing publications, such as NIST SP 800-171 Revision 2.”
In February 2024, ABC joined the U.S. Chamber of Commerce and eight other groups in submitting comments on the proposed rule calling for more clarity (e.g., definitions), expressing concerns about costs and asking questions regarding capacity and other process and organizational issues. The comments urged flexible implementation of CMMC program requirements.
The final rule is effective Dec. 16, 2024. However, CMMC 2.0 will be phased in over time, and the DOD estimates that full implementation by all defense contractors will take several years.
In addition, the phased implementation of CMMC 2.0 will begin only after the related Defense Federal Acquisition Regulation Supplement rule, Assessing Contractor Implementation of Cybersecurity Requirements––which would implement contractual requirements related to CMMC 2.0 and was proposed in August 2024––is finalized. This rule is expected to be finalized some time in 2025.
On Oct. 11, ABC submitted comments on the August 2024 proposed rule, again calling for critical clarifications and improvements to ensure CMMC 2.0 does not unnecessarily burden federal contractors. ABC also engaged over 200 members to submit comments urging the DOD to improve the rule through ABC’s grassroots regulatory efforts. Finally, ABC joined an Oct. 15 comment letter from a coalition of industry groups.
On Oct. 24, Inside Cybersecurity published an article on ABC’s coalition comments on the August 2024 proposed rule.
For more information on CMMC 2.0 and other cybersecurity requirements that affect contractors, visit abc.org/cybersecurity.
On Oct. 1, 2024, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs released its updated its Construction Compliance Review Scheduling Letter and Itemized Listing (also known as a construction scheduling letter). The construction scheduling letter notifies federal contractors they will be undergoing a compliance review of their equal employment opportunity obligations. The updated letter applies to all reviews scheduled on or after Oct. 1, 2024.
OFCCP’s new construction scheduling letter requires additional information to be submitted by the contractor. New information contractors must submit includes:
Contractors must also demonstrate that personnel practices such as seniority practices, job classifications and work assignments do not result in discrimination.
For additional information, see OFCCP’s FAQ and Contractor Compliance Institute, as well as law firm Jackson Lewis’s analysis.
On Sept. 30, the U.S. Department of Labor’s Wage and Hour Division issued an annual update to the hourly minimum wage for federal contract workers covered by Executive Order 14026, Increasing the Minimum Wage for Federal Contractors, in the Federal Register.
Effective Jan.1, 2025, the EO 14026 minimum wage rate that generally must be paid to workers performing work on or in connection with covered contracts will increase from $17.20 to $17.75 per hour. This minimum wage rate will apply to nontipped and tipped employees alike. Visit the DOL’s webpage on EO 14026 for more information.
Contracts similar to those covered by EO 14026 that were entered into, renewed or extended before Jan. 30, 2022, are generally subject to a lower minimum wage rate established by the Feb. 12, 2014, Executive Order 13658, Establishing a Minimum Wage for Contractors. On Jan. 1, 2025, the EO 13658 minimum wage will increase from $12.90 to $13.30 per hour.
Visit the DOL’s Wage and Hour Division for more information.
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 “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. Failure to comply with the onerous reporting requirements could subject small business owners and employees to potential fines and jail time.
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.
On Sept. 3, ABC 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.
“Although filing under the CTA began at the start of this year, FinCEN reports it has received just 10% of required submissions,” the letter stated. “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."
In the letter, ABC and the SBE Council urged House Speaker Mike Johnson, R-La., to bring H.R. 5119 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. 5119 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.
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 Oct. 7, ABC submitted comments on the U.S. Small Business Administration’s proposed rule on the Historically Underutilized Business Zone program. In addition to revisions to the HUBZone program, the proposal also makes a number of significant changes to a wide range of SBA programs utilized by federal contractors, including joint ventures, the mentor-protege program and recertification requirements under multiple award contracts.
Key changes to SBA programs include:
ABC’s comments recommend that the SBA reconsider aspects of the proposal that would increase the difficulty for small businesses to access HUBZone and other programs. The comments urge the SBA to balance the agency’s valid interest in ensuring that firms accessing these programs meet the appropriate statutory requirements against the potential for unintentionally discouraging small business participation.
For more information, see law firm Wiley Rein’s article.
ABC has added Alabama chapter member Tim Harrison of Harrison Construction Co. Inc. to the Beam Club Hall of Fame Level.
The Beam Club was established in 1966 to recognize ABC’s top membership recruiters for their commitment to growing the association. By recruiting five new members, ABC members are automatically enrolled in the Beam Club by their chapter. Members receive one point for each new member recruited. Beam Club activity is ongoing from year to year, with members’ point totals continually accruing and advancing members to the next Beam Club award level.
To reach the Hall of Fame Level of the Beam Club, ABC members must recruit 50 new members.
For more information on the Beam Club, contact Kayli Lewis at [email protected].
After months of failed negotiations, a strike by members of the International Longshoremen’s Association began Oct. 1. As ILA members walked off the job without a new contract from the United States Maritime Alliance, more than 35 ports shut down along the East and Gulf coasts. In their first strike since 1977, the ILA has pledged to strike ‘as long as necessary’ seeking higher wages and a new language on automation in a six-year contract with the U.S. Maritime Alliance.
According to estimates, the economic loss from the strike will cost billions of dollars each day. It will also affect businesses large and small that are not party to the negotiations, but rely upon the free flow of goods, both imports and exports, through these critical ports.
In a statement on Oct. 1, ABC vice president of legislative & political affairs Kristen Swearingen said, “President Joe Biden must invoke his powers under the Taft-Hartley Act to restore operations at the ports and bring parties to the negotiating table so a contract can be reached with the help of a federal mediator. If the Biden-Harris administration is serious about rebuilding America––and maximizing hundreds of billions of dollars in taxpayer investments in infrastructure, clean energy and manufacturing––the construction industry simply can’t afford any more supply chain disruptions and additional costs on critical materials.”
“The price of construction materials has already increased by almost 40% since February 2020 and there have been reports of widespread shortages of key construction materials. Coupled with the construction industry’s skilled labor shortage topping half a million in 2024, these industry headwinds needlessly inflate the cost of construction projects and are exacerbated by the Biden-Harris administration’s weak leadership and anti-competitive executive actions.”
On Oct. 2, ABC joined a coalition of 270 federal, state and local trade associations in a letter calling upon President Biden to immediately use his authorities to end the strike and, resolve this situation expeditiously to protect businesses and consumers from further harm. The letter also explains that while the coalition prefers parties reach agreements on their own, the closures’ devastating economic impact requires intervention by the administration.
Several members of Congress have also commented on the port strike, including House Speaker Mike Johnson’s, R-La., statement calling for leadership from the administration and for the parties to return to the table as well as a letter from Transportation and Infrastructure Committee Chairman Sam Graves, R-Mo., and Coast Guard and Maritime Transportation Subcommittee Chairman Daniel Webster, R-Fla., urging President Biden to use the authority of his office to bring an end to the strike at U.S. East and Gulf Coast ports.
Prior to the strike, on Sept. 29, President Biden was asked about his intentions on whether to exercise his powers under the Taft-Hartley Act to keep the ports open and longshore workers on the job, responded, “No … because it’s collective bargaining, and I don’t believe in Taft-Hartley.” Notably, President George W. Bush applied the act in 2002 to halt an 11-day lockout of union members at West Coast ports.
On Oct. 1, when the strike began, the White House issued a statement: “President Biden and Vice President Harris are closely monitoring potential supply chain impacts and assessing ways to address potential impacts, if necessary. The President and Vice President were briefed on Agency assessments that show impacts on consumers are expected to be limited at this time, including in the important areas of fuel, food, and medicine.
“The President has directed his Supply Chain Disruptions Task Force to meet every day and prepare to address potential disruptions, if necessary. He has also directed his team to continue engaging extensively with labor, industry, state and local officials, ocean carriers, and rail and trucking companies. The Administration has already conducted dozens of meetings with industry on their plans, including multiple meetings with retailers, grocers, manufacturers, agriculture.”
USMX issued a statement yesterday noting its support for collective bargaining and said, “Our current offer of a nearly 50% wage increase exceeds every other recent union settlement, while addressing inflation, and recognizing the ILA’s hard work to keep the global economy running.” The ILA responded to USMX, saying, “The ILA has rejected their so-called “nearly 50% wage increase” because it fails to address the demands of our members adequately.” The ILA has also created a strike update website.
Meanwhile, Acting Secretary of Labor Julie Su issued a statement yesterday on the negotiations. The statement seems to favor labor’s position on wages, saying that the shipping companies “have refused to put an offer on the table that reflects workers’ sacrifice and contributions to their employer’s profits.”
In response to the strike, the Federal Maritime Commission issued a release yesterday highlighting consumer assistance, enforcement and litigation services that individuals and companies could find helpful in seeking relief from current supply chain challenges.
ABC will continue to provide updates in Newsline.