On Friday, Maryland Gov. Wes Moore issued revisions to his previous executive order (01.01.2023.19) regarding project labor agreement usage on large-scale state construction of $20 million or more in total project cost. These changes center around the use of PLAs on design-build and progressive design-build public works, the presence of federal assistance in project finances and the requirements around notification of decisions on PLA use in project solicitation documents.

These changes are assumed to be directly related to the rebuild of the Francis Scott Key Bridge over the Port of Baltimore that collapsed on March 26 after being struck by a container ship. Both federal and state stakeholders are engaged in the planning stages of the rebuild, including the Maryland Transportation Authority and the Federal Highway Administration, and ongoing regulatory and political wrangling will determine the financial and construction-related delivery of the project. Democratic leadership in both Maryland and the federal administration are assumed to heavily favor PLA use and other organized labor-friendly procurement policies in procurement of services for the rebuild.

Specifically, the new order from Gov. Moore declares where “receipt of federal funding or reimbursement” is present, state discretion will determine whether that investment is included in the triggering financial amount of $20 million or more in project cost for PLA use.

It also declares that, in a public multiphase design-build or progressive design-build project, written notification of the findings around the decision to use PLAs or to include the use of PLAs as an evaluation factor will not be required until the construction phase of the project, and written notification of the inclusion of PLAs and/or PLA-related evaluation factors in that phase will be provided in the initial solicitation.

Additionally, the order includes language declaring that, “in a multi-phase design build or progressive design build public work contract, the consideration of community hiring, training, and/or outreach plan for high unemployment areas is not required until the build/construction phase of the project.”

These changes seem to be related to the recent request for proposals for the multiphase bridge rebuild project issued by the Maryland Department of Transportation that directly addresses PLA use, specifying that the “MDTA will be evaluating whether to require a PLA for Phase 2 of this Project, subject to FHWA approval. … If a PLA is not utilized, the Design-Builder shall work with MDTA to include workforce development opportunities for the construction trades.”

The order from Gov. Moore, the RFP for the bridge rebuild and public indications from officials indicate that PLA use on the rebuild will be heavily considered and state policy may accommodate those decisions. The results of those decisions remain to be seen.

Under leadership of the three Maryland ABC chapters—ABC of Greater Baltimore, ABC Chesapeake Shores and ABC Metro Washington—and other stakeholders, an industry coalition effort, the MD Coalition 4 Fairness and Open Competition, is underway to educate Maryland taxpayers, the governor’s office and state regulatory officials and legislators on the harmful effects of government-mandated PLAs on public works, monitor their use in the state and find alternative outcomes when considering large-scale projects. For more information on this effort and to take grassroots action to communicate with Maryland officials, visit the coalition website and share the below image and QR code to spread the message.

ABC National and the MD Coalition 4 Fairness and Open Competition will continue to monitor the conversation around government-mandated PLAs in Maryland, including their specific use on the Francis Scott Key Bridge rebuild, and will provide relevant updates.

ABC Greater Baltimore chapter member Kate Lawrence of Lawrence Law LLC is the newest member of the Beam Club Presidential Level. To reach this level, ABC members must recruit 25 new members.

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.

For more information on the Beam Club, contact Kayli Lewis at [email protected].

On June 3, Reps. Clay Higgins, R-La., and Dusty Johnson, R-S.D., hosted a briefing on the use of project labor agreements and the effects on the American construction workforce. Ben Brubeck, ABC vice president of regulatory, labor and state affairs, joined other state and industry stakeholders to discuss the Biden administration’s final rule mandating PLAs on federal construction projects of $35 million or more that went into effect on Jan. 22. The briefing was widely attended by congressional staff whose members are concerned about the negative impact the final rule will have on contractors around the country.

“When mandated by government agencies, PLAs needlessly increase construction costs by 12% to 20%, reduce opportunities for qualified large and small contractors and their craft and noncraft employees and exacerbate the construction industry’s worker shortage of more than half a million people by discriminating against the nearly 90% of the industry workforce that is not unionized,” said Brubeck.

Prior to the briefing, a collation of industry stakeholders led by ABC sent a letter to U.S. House of Representatives members expressing concerns with the final rule and advocating for legislation that would reverse it. The letter and briefing highlighted the Fair and Open Competition Act (H.R. 1209/S. 537), introduced by Rep. James Comer, R-Ky., and Sen. Todd Young, R-Ind., that protects federal and federally assisted construction contracts from government-mandated PLAs and will allow merit shop contractors to have a fair chance at competing to rebuild America. The bill currently has 118 co-sponsors in the House and staff were encouraged to recommend co-sponsorship to their member. In addition, ABC and other stakeholders expressed support for the Congressional Review Act Resolution (H.J. Res 132) introduced by Rep. Higgins that would nullify the final rule.   

On March 28, ABC and its Florida First Coast chapter filed a lawsuit in the U.S. District Court for the Middle District of Florida in Jacksonville in response to the Federal Acquisition Regulatory Council’s Dec. 22, 2023, final rule––and the related Dec. 18, 2023, White House Office of Management and Budget Memo––implementing President Joe Biden’s Feb. 4, 2022, Executive Order 14063. In its legal filing, ABC asserted that the Biden administration’s PLA rule is beyond the scope of executive authority and violates the Constitution, the First Amendment and the Administrative Procedure Act. The complaint also notes that the rule violates the Federal Property Administrative Services Act, the Competition in Contracting Act, the National Labor Relations Act, the Office of Federal Procurement Policy Act and the Regulatory Flexibility Act, among others, by limiting competition and forcing large and small businesses to sign union agreements as a condition of winning a federal contract for construction services.

Learn more at abc.org/bidenplafaqs and the Build America Local coalition website at BuildAmericaLocal.com.

In 2022, ABC received funding from the Trimmer Construction Education Fund to support efforts to address mental health and suicide in the construction industry. ABC then committed to participating in the University of Colorado’s Helen and Arthur E. Johnson Depression Center program—VitalCog: Suicide Prevention in the Construction Industry’s Train the Trainer program.

Since then, ABC has sent 67 ABC chapter staff and members through the program to become an instructor. Over that time, ABC instructors have provided 95 trainings and 1,617 ABC members and chapter staff have received this vital education.

Participants who went through the VitalCog Train the Trainer are identified as “mental health champions.”  Monthly mental health champion calls are held to offer a safe space to the instructors to share best practices, ask tough questions and help instructors feel empowered and prepared during difficult situations. Each champion receives a purple Mental Health Champion safety vest from ABC to raise awareness on jobsites and in the industry. ABC has a goal of having a mental health champion at every chapter to continue to raise awareness and address this critical issue.

“Without leadership buy-in, employees won’t feel like they’re in a safe space, period. Leaders who lead by example and advocate for mental health can greatly influence the overall atmosphere. Adopting an open and available approach to mental health discussions, along with a top-down mentality, can foster a supportive environment where employees feel comfortable addressing mental health concerns,” said Sherrie Dickerson, education manager at ABC Virginia and an ABC mental health champion.

For more information, contact Haley Moyers at [email protected] or visit abc.org/thh for resources on total human health.

ABC members made up 15 of the top 20 ranked by revenue on Engineering News-Record’s 2024 Top 400 Contractors list. ABC member Turner Construction Co. nabbed the top spot, while, overall, ABC members made up 59 of the top 100.

Companies are ranked by construction revenue in 2023 in millions.

The list is available here. 

On May 24, ABC joined the U.S. Chamber of Commerce and more than 200 national associations and state and local chambers in urging the Federal Trade Commission to stay the effective date of its final rule to ban noncompete clauses in order to allow for judicial review. The effective date of the rule is Sept. 4.

The letter to the FTC states, “Although the noncompete rule’s legal fate remains in question, it is already imposing significant costs and uncertainty on the U.S. economy. Businesses are identifying existing noncompetes and notifying employees and former employees that their noncompetes may no longer be enforceable. Companies are incurring substantial legal costs as they explore other tools to attempt to protect their investments, and workers are losing training opportunities and bargaining power to negotiate compensation.

“A brief delay would comport with the commission’s mission of enforcing federal law in a cost-effective manner. As set forth in the commission’s current strategic plan, the commission ‘strives to efficiently address the competitive concerns raised by a merger or business practice and works toward a solution that maintains competition in the marketplace without unduly burdening legitimate business activity.’ In keeping with this goal, a brief delay would provide invaluable certainty to the business community and, if the rule ultimately is enjoined, potentially conserve significant resources around the country,” the letter said.

On May 14, ABC joined a broad group of trade associations in filing an amicus brief in support of plaintiffs’ request for injunctive relief against the FTC’s final rule to ban noncompete clauses. Injunctive relief is appropriate and necessary to avoid the immediate and irreparable harm the FTC’s final rule would impose on the hundreds of thousands of American businesses—including construction companies—that appropriately rely on narrowly tailored noncompetes.

Ultimately, this vastly overbroad rule will invalidate millions of reasonable contracts around the country that are beneficial for both businesses and employees. ABC members have valid business justifications for utilizing noncompete agreements, such as protecting confidential information and intellectual property. This new rule will have a harmful effect on their companies as well as their employees, forcing companies to rework their compensation and talent strategies.

Background:

On April 23, the FTC voted 3-2 to issue its final rule to ban noncompete clauses, which goes into effect on Sept. 4. ABC issued a news release opposing the rule.

According to the FTC, under the new rule, existing noncompetes for the vast majority of workers will no longer be enforceable after the rule’s effective date. Existing noncompetes for senior executives can remain in force, but employers are banned from entering into or attempting to enforce any new noncompetes, even if they involve senior executives. Employers will be required to provide notice to workers other than senior executives who are bound by an existing noncompete that they will not be enforcing any noncompetes against them.

FTC Resources on the Final Rule:

• Summary
• Fact sheet
• Business and Small Entity Compliance Guide
• Final rule 

To learn more about the final rule and what happens next, read ABC general counsel Littler Mendelson’s analysis.

In April 2023, ABC submitted comments in opposition to the FTC’s unprecedented proposal to ban noncompetes. ABC also joined the U.S. Chamber of Commerce and 280 business groups in submitting comments urging the FTC to rescind the proposed rule.

The final rule is currently being litigated. Continue to monitor Newsline for updates.

On May 22, ABC joined a coalition of business groups in filing a complaint in the U.S. District Court for the Eastern District of Texas, Sherman Division, challenging the U.S. Department of Labor’s controversial final rule, Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales, and Computer Employees, which will change overtime regulations under the Fair Labor Standards Act. Read ABC’s news release announcing the lawsuit.

ABC members and chapter staff are encouraged to register for an ABC webinar on May 30 with ABC general counsel Littler Mendelson to gain insight on the overtime final rule and the legal challenge.

Issued on April 23, DOL’s new final rule increases the minimum annual salary level threshold for exemption in two phases: from the current level of $35,568 to $43,888 on July 1, 2024, and to $58,656 on Jan. 1, 2025. In addition, salary thresholds will update every three years starting on July 1, 2027. ABC issued a news release opposing the rule.

Virtually all of ABC’s members employ workers who qualify for exempt status, and like the unlawful 2016 overtime rule, the DOL’s 2024 rule will reclassify a massive amount of ABC member employees who currently qualify for exempt status as nonexempt. This 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.

In addition, the 2024 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. The rule’s triennial automatic indexing provision will exacerbate the harmful impact on businesses and add to rampant inflation that is already harming the economy.

On Nov. 7, 2023, ABC submitted comments to the DOL in response to the proposed rulemaking, calling on the DOL to withdraw it. ABC also signed onto coalition comments criticizing the overtime proposed rule, joining 244 national, state and local organizations representing employers from a wide range of private industry and public, nonprofit and education sectors.

DOL resources on the final rule:

• Frequently Asked Questions
• Chart of All the Earnings Thresholds for Executive, Administrative, and Professional Employees
• Small Entity Compliance Guide
• Overtime Final Rule Website
• Press Release

Additionally, read Littler Mendelson’s analysis of the overtime final rule.

Lane Grigsby, chair emeritus of Cajun Industries, headquartered in Baton Rouge, Louisiana, was recently awarded ABC’s inaugural Legacy Medallion for Advocacy for his contributions to the merit shop construction industry over more than 50 years.

The ABC Legacy Medallion was introduced in 2024 to recognize transformational leadership by a volunteer leader directly related to living the association’s purpose and objectives as documented in Articles I and III of the ABC bylaws and establishing ABC as the voice of the merit shop.

“Lane embodies the belief that all Americans can best be served by cooperation and following the tenets of free enterprise and democratic government, and that leaders in our industry best preserve these tenets by being active in politics and civic affairs,” said ABC President and CEO Michael Bellaman. “Lane’s authentic, uncompromising commitment to sustaining a culture of giving has propelled the Free Enterprise Alliance and ABC PAC to new heights and led to recognition of ABC as the premier advocate for merit-based principles and fair and open competition. These principles are the key to innovation, achievement and opportunity for all who employ and are employed in the construction industry.

“We thank Lane for these significant achievements and the legacy he has created for the betterment of the construction industry and the nation,” said Bellaman.

An Army veteran who attended the U.S. Military Academy, Grigsby earned a bachelor’s degree in civil engineering at Louisiana State University before founding Cajun Contractors and Engineers in 1973. Today, Cajun Industries is a nationally recognized construction leader providing fully integrated self-performed engineering, procurement and construction services to some of the largest and most renowned companies in the world in a broad range of markets, from oil, gas and energy to refining, chemical processing, manufacturing, infrastructure, disaster response, communication and water quality, among others.

Cajun joined ABC New Orleans/Bayou in 1976 and Grigsby later founded the chapter’s Baton Rouge branch. A strong advocate for merit shop construction at the state and federal levels, Grigsby served on the chapter board of directors for 18 years, is a former ABC state and chapter president and was named ABC’s Man of the Year twice.

From left to right, ABC Pelican Chapter President and CEO David Helveston, ABC National Senior Director of Political Affairs Melanie Pfeiffenberger, Cajun Contractors Chair Emeritus Lane Grigsby, ABC National President and CEO Michael Bellaman and ABC National 2023 Chair of the Board of Directors Milton Graugnard, executive vice president of Cajun Industries.

On May 17, ABC joined an industry coalition in submitting comments to the White House’s Office of Management and Budget in response to the OMB’s request for information on public participation in federal agency policymaking. The OMB issued the request ahead of plans to develop a governmentwide framework, common guidelines and leading practices for public participation and community engagement.

In the comments, ABC calls on the OMB to ensure greater transparency in federal rulemaking across all agencies. Among other concerns, the comments urge the OMB to require agencies to properly engage with relevant trade associations, avoid making policy through supposedly nonbinding guidance documents, provide sufficient notice and comment periods for all rulemakings and prioritize the use of plain language in rulemakings to enhance accessibility for the general public.

On May 21, 20 states led by Iowa and North Dakota joined in a lawsuit against the Council on Environmental Quality, seeking to overturn the ABC-opposed National Environmental Policy Act Phase 2 revisions. The complaint asserts that the CEQ’s new regulations impose unnecessarily burdensome and unworkable new rules that will delay critical projects across the country.

The final rule, which takes effect July 1, implements wide-ranging changes to the federal environmental review and permitting process. The changes reverse important streamlining provisions from the ABC-supported 2020 NEPA rule and add new layers of complexity to the NEPA process.

ABC previously joined a coalition submitting comments opposing the rule, and issued a statement condemning the final rule upon its release.