In the Final Rules section, you will find new federal rules of critical importance to the merit shop construction industry. We have provided the responsible agency, pertinent background information, effective dates, as well as any additional agency compliance information and/or guidance that may be available.
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On May 14, 2012, the U.S. District Court for the District of Columbia ruled that the NLRB "ambush" election rule to be invalid and is . The NLRB is expected to appeal this decision.
National Labor Relations Board
Final Rule
December 22, 2011
April 30, 2012
National Labor Relations Board
Final Rule
August 30, 2011
April 30, 2012
On August 30, the National Labor Relations Board (NLRB) issued a final rule to require any employers subject to the National Labor Relations Act (NLRA), which includes all ABC members, to display an 11-by-17-inch poster in their workplace that contains a select list of employee rights under the NLRA.
If the rule goes into effect, employers will be required to post a physical copy of the notice at workplaces, as well as an electronic copy on the internet (or company intranet) if it is already customary to do so.
An injunction has been granted by the U.S. Court of Appeals for the D.C. Circuit to block the NLRB's Notification of Employee Rights” notice posting rule. The order means the . Employers are not required to post until further notice.
The injunction, issued April 17, comes in response to a request filed last month by the ABC-led Coalition for a Democratic Workplace (CDW). The order places the rule on hold indefinitely while the appeals court considers CDW’s appeal of an unfavorable ruling by the U.S. District Court in D.C.
In addition, on April 13, a federal District Court judge in South Carolina (5th Circuit) ruled that the NLRB notice posting requirement was unlawful, citing the Board’s lack of statutory authority--a key argument in CDW's appeal.
See ABC's NLRB Notice Posting Rule page for more information and resources.
Federal Acquisition Regulation (FAR) Council
Final Rule
November 2, 2011
December 2, 2011
On November 2, 2011, the Federal Acquisition Regulation Council issued a final rule implementing Executive Order 13494. The rule prohibits federal contractors from being reimbursed for activities involving educating employees about joining a union.
For more on the final rule, visit ABC Newsline. Additional resources are provided below.
Department of Labor
Final Rule
August 29, 2011
Pending On August 29, 2011, the Department of Labor issued a final rule implementing Executive Order 13495, which requires federal agencies to require contractors and subcontractors to offer employment to any employees (other than managerial or supervisory employees) that worked on predecessor contracts or subcontracts covered by the McNamara-O’Hara Service Contract Act (SCA).
The rule will not have an effective date until the Federal Acquisition Regulatory (FAR) Council issues regulations. Once the effective date is established, DOL will publish it in the Federal Register.
For more on the final rule, visit ABC Newsline. Additional resources are provided below.
Departments of Health and Human Services (HHS), Labor (DOL) and Treasury
Interim Final Rules
July 23, 2010
September 21, 2010 (for plan years beginning on or after September 23, 2010)
On July 23, 2010, the Departments of Health and Human Services, Labor and Treasury issued interim final rules that implement requirements relating to internal claims and appeals, and external review processes for group health plans and health insurance coverage in the group and individual markets under the Patient Protection and Affordable Care Act (PPACA).
For more on the interim final rules, visit ABC Newsline. On June 24, 2011, an amendment to the Interim Final Rule was issued.
Additional resources are provided below.
Occupational Safety and Health Administration (OSHA)
Final Rule
August 9, 2010
November 8, 2010
On August 9, 2010, the Occupational Safety and Health Administration (OSHA) issued a final rule updating work practice, training and certification requirements for crane and derrick safety in the construction industry. According to OSHA, significant requirements in the new rule include:
- Qualification or certification of crane operators
- Assessment of ground conditions
- Procedures for working in the vicinity of power lines
- Pre-erection inspection of tower crane parts
- Use of synthetic slings in accordance with the manufacturer's instructions during assembly/disassembly
OSHA changed several major provisions of the rule, and offered additional clarification on others. Most notably, the rule will apply nationwide, but will not preempt all state and local rules and ordinances. States and municipalities that currently have, or decide to implement, rules that are "as effective as" the federal OSHA rule will not be preempted. In addition to the state/local preemption issue, other notable changes and clarifications from the proposed rule include:
- Requires employers to pay for certification or qualification of currently uncertified or unqualified operators
- Clarification of 'controlling entity' responsibilities regarding knowledge of ground conditions
- Explicitly requires compliance with equipment manufacturers' usage recommendations
- Limits portability of training certifications to those administered by an accredited testing organization (certifications obtained from employer programs are not portable)
- Requires employers to use a qualified rigger for rigging operations during assembly/disassembly
- Requires employers to ensure that signal persons are qualified by either third party evaluator or the employer’s evaluator
On August 27, 2010, ABC submitted a letter to OSHA, asking the agency to delay implementation of the work practice provisions of its final rule on crane and derrick safety until contractors have had a reasonable amount of time to review official compliance assistance material, which was not issued until March 8, 2011 (eight months after the rule was published and four months after it became enforceable).
For more on the final rule, visit ABC Newsline. Additional resources are provided below.
While the rule references November 8, 2010, as the rule's effective date, please note that this applies to the work practice provisions of the rule. The training and certification requirements will go into effect four years from the effective date on November 8, 2014, excluding states and local municipalities that currently have requirements that are "as effective as" the federal OSHA rule.
Departments of Health and Human Services (HHS), Labor (DOL) and Treasury
Interim Final Rules
July 19, 2010
September 17, 2010
On July 19, 2010, the Departments of Health and Human Services, Labor and Treasury issued interim final rules that require health plans and issuers to cover “recommended preventive services” and eliminate cost-sharing requirements, such as a deductible, copayment or co-insurance, on those measures.
According to the regulations, recommended preventive services include but are not limited to: blood pressure screening for adults; colorectal cancer screening for adults over 50; breast cancer mammography screenings every 1 to 2 years for women over 40; and autism screening for children at 18 and 24 months.
For more on the interim final rules, visit ABC Newsline. On August 3, 2011, an amendment to the Interim Final Rule was issued. Additional information about the amendment is provided below.
RESOURCES (Some links redirect to agency resources.):
Departments of Health and Human Services (HHS), Labor (DOL) and Treasury
Interim Final Rules
June 28, 2010
August 27, 2010
On June 28, 2010, the Departments of Health and Human Services, Labor and Treasury issued interim final rules for group health plans and health insurance issuers regarding pre-existing condition exclusions, lifetime and annual dollar limits on coverage, rescissions, and patient protections under provisions of the Patient Protection and Affordable Care Act (PPACA).
The rules discuss the following:
- Prohibition of pre-existing condition exclusions;
- Lifetime and annual limits;
- Prohibition on rescissions;
- Choice of health care professional; and
- Emergency services.
Under the rules, group health plans and health insurance issuers are prohibited from imposing any pre-existing condition exclusions. For individuals under age 19, the prohibition applies to plan years beginning on or after September 23, 2010. For individuals age 19 and over, the prohibition applies to plan years beginning on or after January 1, 2014. The provision applies to all plans, except grandfathered individual health insurance coverage.
Generally, PPACA prohibits annual dollar limits on coverage; however, “restricted annual dollar limits” are allowed regarding coverage of essential health benefits for plan years beginning before January 1, 2014. The regulations provide a three-year phase out for restricted annual dollar limits as follows:
- $750,000 for plan or policy years beginning on or after Sept. 23, 2010 but before Sept. 23, 2011;
- $1.25 million for plan or policy years beginning on or after Sept. 23, 2011 but before Sept. 23, 2012; and
- $2 million for plan or policy years beginning on or after Sept. 23, 2012 but before Jan. 1, 2014.
”Restricted annual dollar limits” apply to all plans, except grandfathered individual market policies. For plan years beginning on or after Jan. 1, 2014, annual dollar limits on coverage of essential health benefits are prohibited.
For more on the interim final rules, visit
ABC Newsline. Additional resources are provided below.
RESOURCES (Some links redirect to agency resources.):
Departments of Health and Human Services (HHS), Labor (DOL), and Treasury
Interim Final Rules
June 17, 2010
June 14, 2010
On June 17, 2010, the Departments of Health and Human Services, Labor and Treasury issued interim final rules for group health plans and health insurance coverage relating to status as a “grandfathered health plan” under provisions of the Patient Protection and Affordable Care Act (PPACA).
Under PPACA, “grandfathered health plans” are certain plans and insurance coverage that existed on March 23, 2010. Grandfathered plans are required to comply with some but not all of the health reforms contained in PPACA.
The interim final rules also provide that routine changes—such as adding new benefits or making modest adjustments to existing benefits—will not cause a plan to lose grandfathered status. However, grandfathered plans will not maintain their status if they make significant changes that reduce benefits or increase costs. Grandfathered plans must also follow certain document retention and disclosure provisions in order to maintain its status.
The following changes to a plan, as it existed on March 23, 2010, will cause the plan to lose grandfathered status:
- Changing insurance companies;
- Raising co-insurance charges;
- Increasing copayments by more than the greater of $5 (adjusted annually for medical inflation) or a percentage equal to medical inflation plus 15 percentage points;
- Raising deductibles by more than a percentage equal to medical inflation plus 15 percentage points;
- Decreasing employer contributions by more than five percentage points;
- Adding or tightening an annual dollar limits; or
- Eliminating or significantly cutting benefits to diagnose or treat a particular condition.
On August 16, 2010, ABC, a coalition of small business representatives, filed comments expressing concern regarding interim final rules. A full summary of ABC’s response is provided in ABC Newsline.
On November 17, 2010, the Departments of Health and Human Services, Labor, and Treasury issued an amendment to the June 17 interim final rules on grandfathered health plans. The amendment permits certain changes in policies, certificates, or contracts of insurance without loss of grandfather status. For more on the amendment, visit ABC Newsline.
For further information, please refer to the resources provided below.
Departments of Health and Human Services (HHS), Labor (DOL), and Treasury
Interim Final Rules
May 13, 2010
July 12, 2010
On May 13, 2010, the Departments of Health and Human Services, Labor and Treasury issued interim final rules dealing with dependent coverage of children to age 26 under the Patient Protection and Affordable Care Act (PPACA). The requirements generally apply to group health plans and group health insurance issuers, and individual health insurance issuers for plan or policy years beginning on or after September 23, 2010. PPACA requires plans and issuers that offer dependent coverage to offer coverage to enrollees’ adult children until age 26.
For further information, please refer to the resources provided below.
Department of Labor (DOL)
Final Rule
May 20, 2010
June 21, 2010
On May 20, 2010, the Department of Labor (DOL) issued a final rule requiring federal contractors and subcontractors to post an agency-approved notice informing employees of certain rights afforded by the National Labor Relations Act (NLRA), in accordance with President Obama’s Executive Order 13496. The requirement goes into effect June 21, 2010 for all new or amended contracts.
The final rule describes the size, content and location requirements for posting the required notice. The rule applies to all federal contractors performing work on contracts worth more than $100,000, and all federal subcontractors at any tier performing work worth more than $10,000 (even if the prime contractor on the project is exempt from the requirement). The notice must be posted physically in a prominent location where employees can easily see it and also must be posted electronically if the employer posts similar notices online.
In direct response to comments filed by ABC, the poster contains revised examples of legal misconduct that also reflect unlawful union activity, rather than solely listing employer activity. In addition, the agency clarified that the new poster will not be used as a “backdoor” DOL enforcement mechanism for the substantive provisions of the NLRA. DOL clearly stated that complaints arising out of union activity will be referred directly to the National Labor Relations Board (NLRB), as has always been the case.
Federal Acquisition Regulation (FAR) Council
Final Rule
April 13, 2010
May 12, 2010
On April 13, 2010, the Federal Acquisition Regulation (FAR) Council published its final rule implementing Executive Order 13502, which encouraged federal agencies to require project labor agreements (PLAs) on federal construction projects.
Last summer, ABC filed comments strongly opposing the FAR Council's initial proposal, citing the lack of empirical justification for the use of PLAs, and the absence of any meaningful criteria for agencies to use in deciding whether to impose PLAs. In addition, ABC disagreed with the FAR Council’s small business impact statement, which grossly underestimated the cost of the rule on small contractors.
The rule takes effect May 12, and contains the following:
- Threshold of $25 million for federal construction projects.
- Allows federal agencies flexibility in developing an agency PLA policy that that can be applied to individual federal projects.
- Allows federal agencies different options during the acquisition process when they can require contractors to submit a PLA: (1) when the offers are due; (2) prior to award (by apparent successful offeror); or (3) post-award. (This is a departure from the FAR Council’s initial proposal.)
- Allows federal agencies to specify the terms and conditions of the PLA in the solicitation and require the successful offeror to become a party to a PLA containing a minimum of those terms and conditions as a condition of receiving a contract award. (This is a departure from the FAR Council’s initial proposal.)
- Clarifies that the rule does not allow for retroactive application to federal projects already underway.
- Gives agencies discretion in addressing the impact of a PLA on small businesses.
- Does not apply to federally-assisted construction projects. (Although project owners at the state and local level are free to require PLAs now that the Bush administration's anti-PLA, pro-competition Executive Order 13202 has been repealed by the Obama administration) Section 7 of Executive Order 13502 does lay groundwork for possible expansion to include federally-assisted projects in the future.
On April 21, 2010, ABC's General Counsel, Maurice Baskin released a thorough analysis of the final rule, titled, The Final Rule Implementing the PLA Executive Order: Why it Should Be Challenged. Legal challenges are expected, and more information will be forthcoming regarding compliance as it becomes available.
For the latest, visit www.abc.org/pla, or www.thetruthaboutplas.com.
Environmental Protection Agency (EPA)
Final Rule
April 22, 2008
April 22, 2010
The rule implements EPA’s Lead Renovation, Repair and Painting (RRP) rule, which requires renovators working in any pre-1978 home, apartment, or “child occupied facility” where more than six square feet of surface area are disturbed to be trained and certified by an EPA-accredited trainer. Both the firm, and individuals working for them must be certified. More information regarding compliance is available on EPA's comprehensive Lead RRP resource page provided below.
A “child-occupied facility” includes schools with children under 6—not necessarily all schools. For example, if a high school has day care (for students, faculty, etc.) or a child-development class where children under age six are brought into the building on a regular basis, then that school would be included. If not, it would not be covered.
In addition, EPA has authorized some states to administer their own RRP programs. These states are: IA, KS, MS, NC, OR, RI, UT, WI.
In the coming years, EPA plans to bring commercial construction (regardless of child occupancy) under the lead-control regulations by summer 2013. Initial proposals will be released by EPA in summer 2011.
On June 18, 2010, following pressure from construction businesses, lawmakers and industry trade groups (including ABC), EPA announced that it would it would delay enforcement of the RRP certification requirements until October 2010. The final rule implementing the program initially took effect in April, but a lack of accredited training providers prevented many contractors from obtaining the necessary certifications. The agency stresses, however, that contactors performing work that triggers the lead-safe rule will still be expected to comply with the rule’s work practice requirements during the certification safe harbor.
For more information, visit, www.epa.gov/lead.
Environmental Protection Agency (EPA)
Final Rule
December 1, 2009
February 1, 2010
On December 1, 2009, the Environmental Protection Agency (EPA) issued a final rule intended to control pollutants and stormwater runoff from construction sites. EPA was under a court-ordered deadline to implement a rule by the end of the year.
EPA's final rule calls for:
- Adherence to the rule's non-numeric effluent limitations in residential and commercial construction, as well as road, highway and infrastructure work.
- A numeric standard of 280 Nephelometric Turbidity Units (NTUs) to be applied in two phases:
- Sites disturbing 20+ acres at one time: Effective August 1, 2011
- Sites disturbing 10+ acres at one time: Effective February 2, 2014
ABC maintains that the limited benefits of the EPA rule do not outweigh its astronomical cost. At a price tag of nearly $1 billion annually (by EPA estimates; by industry figures, the cost could be up to $10 billion), it will be difficult, if not impossible, for businesses to cope with the associated costs. The fact that EPA estimates the final rule will control less than one quarter of one percent of all total sediment runoff makes the numeric provisions of the final rule even more offensive to the industry.
In a letter to EPA, ABC reminded the agency that cost concerns are especially true for thousands of small businesses that would be impacted (some of which will have to close their doors, according to EPA's own economic analysis).
ABC is on record opposing the mandated use of cost-prohibitive treatment and filtration systems, and has recommended that EPA limit requirements to the continued use of the current erosion and sediment control best management practices (BMPs). ABC has also urged EPA to identify causative factors other than jobsite size to determine when certain BMPs must be utilized, and suggested that a more thorough costing analysis should be conducted before the final rule is implemented.
EPA officials have informed ABC that, while the rule is officially effective February 1, 2010, the final rule's provisions will not go into effect until a state updates its construction general permit (CGP). A table of state CGP expiration dates is provided below. (Exceptions are ID, MA, NH and NM these states have CGPs issued by EPA. EPA updated its CGP on February 29, 2012).
As a result of legal action taken by construction industry representatives against the unreasonable numeric limit set by EPA in the final rule, the agency announced plans to withdraw the numeric limit requirements entirely, and to solicit additional data on potential numeric limits.
Previously, the agency had announced that it would aim to release a more reasonable requirement for the construction industry by February 15, 2012, which would have coincided with the anticipated release of the new CGP, which was issued February 29, 2012.
More information is available in ABC Newsline.
Department of Labor (DOL), Employment Standards Administration (ESA): Office of Labor Management Standards (OLMS)
Rescission of Final Rule
January 21, 2009
On October 13, 2009, the U.S. Department of Labor’s (DOL) Office of Labor-Management Standards (OLMS) announced that a final rule revising the current LM-2 financial disclosure form for larger unions had been officially rescinded.
The rule, originally published on January 21, was scheduled to take effect in late February. However, on January 20, 2009, the White House issued a memorandum, directing agencies to delay the implementation of many rulemakings issued in the last months of the Bush administration. The White House memo prompted a directive from the Office of Management and Budget (OMB) that outlined a set of criteria that any recently finalized regulations would need to meet in order to avoid additional review and/or postponement.
In comments filed with DOL on February 12 and April 7, ABC strongly opposed the implementation delay and subsequent rescission, and pointed out that the LM-2 rule clearly meets OMB’s stated criteria for acceptable regulations. ABC maintains that the LM-2 rule is necessary for OLMS to carry out DOL’s statutory mandate to combat union-related corruption, as directed by the Labor-Management Reporting and Disclosure Act (LMRDA).
AGENCY: Civilian Acquisition Council & Defense Acquisition Regulations Council (FAR Councils)
: Final Rule
: November 14, 2008
: September 8, 2009
: On November 14, 2008, the Civilian Acquisition Council and the Defense Acquisition Regulations Council (FAR Council) issued a final rule on E-Verify which requires federal contractors and subcontractors to use the federal E-Verify system to confirm the eligibility of their new, as well as many existing employees, to work in the United States.
Federal contractors and subcontractors will be required to use the E-Verify system for all new hires on contracts awarded after the rule’s effective date. The rule also applies to existing personnel “directly performing work” on federal contracts. Existing “indefinite-delivery/indefinite-quantity” contracts will also be modified to incorporate the provisions of the rule.
The rule is intended to implement Executive Order 13465 , which President Bush amended on June 6, 2008, in order to mandate that federal contractors agree to electronically verify the employment eligibility of their employees.
Under the governing statute, employees are only permitted to use E-Verify to validate new hires. Consequently, ABC and many other employer organizations believe the Executive Order and the majority of the new requirements exceed the President’s authority.
In December, ABC and its coalition partners challenged the authority of the government to promulgate this regulation and sought an injunction from a federal court. The legal challenge echoed ABC's position in previous comments on the rule, arguing that to require broader use of E-Verify would be illegal and expose contractors to needless liabilities.
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Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS)
Interim Final Rule
December 17, 2008
April
3, 2009
On December 17, 2008, the Department of Homeland Security (DHS) published a final rule revising Form I-9, which is used to verify the employment eligibility of newly-hired employees. Employers must begin using the revised Form by April 3.
The current edition of Form I-9, dated 06/05/2007, will no longer be valid after April 3 (please note that the form is dated 06/30/2009). Employers who use outdated editions of Form I-9 are subject to fines and penalties. Additionally, the I-9 process may not be used to pre-screen potential employees for hiring unless it is a regular policy or practice to do so.
Employers will be required to use the revised form for all new hires and to re-verify any employee with expiring employment authorization. The most significant revision is the requirement that all documents presented during the I-9 completion process be unexpired. Links to the updated form, a full list of the form revisions, and guidance from DHS can be accessed through the links provided below.
Please note that a Spanish version of Form I-9 is available, but may only be submitted by employers and employees in Puerto Rico. Spanish-speaking employers and employees in the 50 states and other U.S. territories may print the Spanish version for reference, but must submit the form to DHS in English to remain in compliance.
Department of Labor (DOL), Employment Standards Administration (ESA)
Final Rule
November 17, 2008
January 16, 2009
On November 17, 2008, the Department of Labor’s (DOL) Employment Standards Administration (ESA) issued a final rule updating the Family and Medical Leave Act (FMLA) for the first time in more than 13 years. The final rule provides additional leave for military families and further guidance for both employees and employers, and is scheduled to take effect in January 2009.
FMLA was enacted in 1993 to allow workers to take unpaid leave to address important family and medical issues. Under the rule, employees will still be able to take time off for the birth or adoption of a child, to take care of a family member with a serious illness, or seek treatment themselves when seriously ill.
Under the rule, employers are required to provide employees with information about FMLA including a general notice, an eligibility notice, a designation notice and a notice of rights and responsibilities. Employees who need to use FMLA leave are now required, under the final rule, to follow the employer’s usual and customary call-in procedure when reporting an absence, unless there are unusual circumstances that prevent it.
Also included in the final rule was a provision passed in January 2008 that allows up to three months for active duty leave and allows family members of injured military personnel to take up to six months of unpaid leave during the rehabilitation process.
Additionally, the FMLA workplace poster has been revised to reflect the changes in the final rule. An employer covered by the FMLA is required to post and keep posted on its premises, in conspicuous places where employees are employed, a notice explaining the Act’s provisions.
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Department of Homeland Security (DHS); Department of Justice (DOJ)
Final Rule
February 26, 2008
: March 27, 2008
: The Department of Homeland Security (DHS) published a final rule that increases civil fines against employers who violate federal immigration laws by as much as 25 percent under the Immigration and Nationality Act (INA)
As a result of the increase, the maximum civil penalty for multiple violations will rise to $16,000. The maximum penalty for a first violation increases to $3,200.
The impact of the increases has the potential to be significant for some employers because penalties are assessed on a per-worker basis. For example, an employer who knowingly employed, or continued to employ, five undocumented workers will be subject to five separate fines.
The rule was published by DHS without offering the public, including ABC, the opportunity to submit comments, as is customary procedure for most final rules. Under federal law, DHS is authorized to publish final rules without publishing a proposed rule and providing the public the opportunity to comment.
Civilian Acquisition Council & Defense Acquisition Regulations Council (FAR Councils)
Final Rule
November 23, 2007
December 24, 2007
: The Civilian Agency Acquisition Council and the Defense Council published a final rule amending the federal acquisition regulation (FAR), the process through which all services and goods are acquired by the federal government. The amended rules became effective on December 24, 2007, and require all government contractors and subcontractors to comply with new ethics rules in order to be awarded government contracts.
Contractors must establish a formal code of business ethics and conduct, complete with compliance awareness efforts and internal reporting controls. Additionally, contractors must display Government fraud hotline posters in offices and at job sites. Failure to comply with the requirements may result in the withholding of contract payments and the loss of contract award fees, so it is important that affected members fully understand the new requirements.
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Because the regulations require ongoing compliance, ABC recommends that contractors consult with their legal counsel before finalizing their code.