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On April 1, ABC submitted comments opposing the Federal Acquisition Regulatory Council’s proposed rule, Pay Equity and Transparency in Federal Contracting. The proposal would prohibit federal contractors and subcontractors from requesting or considering information about a job applicant’s salary history during hiring for certain positions and would also require them to publicly disclose the salary for certain positions as part of any advertisements for the job opening.

Companies would be required to comply with these provisions for any position that will perform work on or in connection with a federal contract. The rule also establishes a complaint process for job applicants to report contractor noncompliance to the contracting agency.

ABC’s comments highlighted several concerning issues regarding the proposed rule, including:

  • Violation of the Federal Property and Administrative Services Act by inhibiting “economical and efficient government procurement”
  • Conflicts with existing regulations requiring evaluation of employee compensation
  • Impractical and overly broad salary range requirements
  • Lack of clarity and due process for contractors in the complaint process

ABC will continue to monitor this regulation and provide additional information as the FAR Council moves towards a final rule.

On March 29, the U.S. Department of Labor’s Occupational Safety and Health Administration announced 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. This final rule is effective on May 31, 2024. ABC will offer a webinar on Tuesday, April 9 at 2 p.m. ET about the final rule. Register now!

ABC issued a press release opposing the final rule, saying:

“Now, construction employees and employers could face serious safety concerns because the final rule has the potential to allow anyone on a jobsite,” said Greg Sizemore, ABC vice president of health, safety, environment and workforce development. “There simply is no business case for this final rule and no benefit during a compliance inspection.”

“By allowing outside union agents access to nonunion employers’ private property, OSHA is injecting itself into labor-management disputes and casting doubt on its status as a neutral enforcer of the law,” said Sizemore. “This final rule negatively impacts the rights of employers while simultaneously ignoring the rights of the majority of employees who have not authorized a union to represent them. OSHA’s rule also poses unnecessary risk to the individual joining the inspection and others on the jobsite if the authorized person is not trained to safely walk a construction jobsite. The rule does not include any requirement that the authorized person be equipped or conduct themselves to the same standards as OSHA safety inspectors. Further, the final rule fails to answer who is legally responsible if the third party gets injured during the inspection or harms someone else.”

ABC is currently considering all options in response to this rule.

OSHA Resources on the final rule:

On Nov. 13, ABC submitted comments urging the DOL to withdraw its Worker Walkaround Representative Designation Process proposed rule. ABC also signed on to comments submitted by the Coalition for Workplace Safety and Construction Industry Safety Coalition

ABC will continue to monitor this issue and provide updates as they become available.

On March 22, Sen. Bob Casey, D-Pa., led a group of Democratic senators in a letter to U.S. Department of the Treasury Secretary Janet Yellen, urging Treasury to impose additional burdensome labor mandates and compliance regulations in the agency’s implementation of the Inflation Reduction Act.

The ABC-opposed IRA provides over $270 billion in tax credits for the construction of solar, wind, hydrogen, carbon sequestration, electric vehicle charging stations and other clean energy projects. Unfortunately, these tax credits are conditioned on compliance with restrictive prevailing wage and government-registered apprenticeship program mandates.

On Aug. 29, 2023, Treasury issued a proposed rule and FAQs to provide additional guidance regarding the IRA’s prevailing wage and apprenticeship requirements. On Oct. 30, ABC submitted comments to the IRS and issued a Oct. 31 press release, outlining the cumbersome and unclear nature of the regulations and provisions that inhibit fair and open competition by unfairly favoring unionized contractors. A final rule is expected by the end of 2024, but taxpayers and contractors may rely on the proposed rule for compliance until the final rule is issued.

The senators’ recommendations regarding the regulations would exacerbate these concerns if implemented, with the letter’s suggestions that they would:

  • Allow project labor agreements as evidence of compliance with all prevailing wage and GRAP requirements, providing an unfair advantage to unionized contractors competing for IRA projects
  • Establish burdensome, new front-end compliance reporting, including weekly certified payrolls, apprentice labor hour reports, labor plans and complaint procedures
  • Increase the difficulty for taxpayers to access the Good Faith Effort exception to GRAP requirements by requiring taxpayers to first contact “all registered programs that could be reasonably expected to provide apprentices to the qualified facility”

ABC will continue to advocate for Treasury to instead promote policies that welcome all qualified contractors on clean energy projects. Additional resources and information are available at abc.org/ira.

The U.S. House of Representatives recently passed the Creating Confidence in Clean Water Permitting Act in a 213-205 vote. H.R. 7023, sponsored by Rep. David Rouzer, R-N.C., includes provisions from five stand-alone ABC-supported bills that passed out of the House Committee on Transportation and Infrastructure on Jan. 31: The Nationwide Permitting Improvement Act, the Reducing Permitting Uncertainty Act, the Judicial Review Timeline Clarity Act, the Water Quality Criteria Development and Transparency Act and the Confidence in Clean Water Permits Act. The bill will go a long way toward eliminating unnecessary delays that cause budget overruns in construction.

ABC sent a letter in support of H.R. 7023 to all House members, saying it represents the best and most comprehensive federal regulatory permitting and project review reform legislation on the table this Congress.

On March 25, the U.S. House of Representatives Committee on Education and the Workforce passed the ABC-supported H.J. Res. 116, the Congressional Review Act resolution to nullify the U.S. Department of Labor’s independent contractor final rule, in a 21-13 vote with all Republicans present voting in support.

Ahead of the markup, ABC sent a letter in support of the resolution and urged committee members to report it for a full House vote. “The proposal creates an ambiguous and difficult-to-interpret standard under which employers will be forced to guess which factors will be more important in the determination and how to analyze the facts of their contractual relationships under multiple factors,” the letter noted. “This confusion will lead to more litigation, as employers and workers alike will not understand who qualifies as independent contractors.”

On Jan. 9, the DOL announced 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. On March 5, ABC, its Southeast Texas chapter, the Coalition for Workforce Innovation, the Financial Services Institute, the American Trucking Associations, the U.S. Chamber of Commerce, the National Retail Federation and the National Federation of Independent Business filed an amended complaint in the U.S. District Court for the Eastern District of Texas arguing that the U.S. Department of Labor’s Employee or Independent Contractor Classification Under the Fair Labor Standards Act final rule is unlawful and a violation of the Administrative Procedure Act. The district court will review the complaint and response from the U.S. Department of Justice. The final rule went into effect on March 11. 

Learn more about the 2024 final rule. Also, watch the ABC members-only archived webinar in the Academy, “Learn What the DOL's Final Independent Contractor Rule Means for ABC Members.”

On March 18, ABC submitted 45 pages of comments on the U.S. Department of Labor’s proposed rule making significant and controversial revisions to the National Apprenticeship System, which will affect ABC members, chapters, apprentices and other industry stakeholders participating in government-registered apprenticeship programs, or GRAPs.

ABC also issued a statement condemning the rule that was picked up in numerous media outlets:

“ABC recognizes and fully supports government-registered apprenticeship programs as a key component of the construction industry’s all-of-the-above solution to upskilling the over half a million new workers needed in 2024 alone, and would welcome efforts to modernize and expand this system,” said Ben Brubeck, ABC vice president of regulatory, labor and state affairs. “Unfortunately, as our comments outline, this illegal, unnecessarily costly and burdensome Biden administration proposal will instead restrict GRAP system growth and exacerbate the industry’s labor shortage.”

ABC’s comments criticized and urged the withdrawal of several concerning provisions in the proposed rule, including:

  • Reduction of flexibility by replacing competency-based GRAPs with time-based GRAPs
  • Elimination of state government’s ability to approve apprenticeship programs for new occupations
  • Numerous costly new recordkeeping and administrative requirements

“Overall, this proposal will cost the regulated community more than $1.3 billion over the next 10 years, according to the DOL’s own flawed and stunningly low-ball regulatory cost analysis,” said Brubeck.

The U.S. Small Business Administration’s Office of Advocacy also submitted comments highlighting the DOL’s inadequate regulatory cost estimates and negative effect on small businesses:

“[The Office of] Advocacy is concerned that the DOL underestimates the economic impact of this rule on small businesses in its IRFA. Small sponsors and employers will have a difficult time complying with the new costs and administrative burdens in this new proposal, such as operational changes, recordkeeping requirements, and legal disclosures. This rule will also discourage new small businesses from participating in this program, creating a barrier to entry to lucrative government funding opportunities. “

ABC members also submitted at least 1,450 unique comments opposing the rule via ABC’s grassroots campaign utilizing ABC’s Action app and Action Center. These account for 65% of comments submitted to the DOL. ABC member comments illuminated ways the GRAP system has been perverted by special interest groups and bad actors within state governments to serve as a tool to restrict competition for taxpayer-funded contracts and grants.

Additionally, Sen. John Barrasso, R-Wyo., and Rep. Virgina Foxx, R-N.C., along with U.S. Senate and U.S. House of Representatives colleagues, sent letters to the DOL urging the Biden administration to withdraw its controversial proposed changes to the National Apprenticeship System.

“The one-size-fits-all Washington mandate does not take into consideration the various dynamics of apprenticeship programs across localities and industries,” Sen. Barrasso wrote. “The burdensome requirement will also be particularly difficult for small businesses to fulfill as they may lack the flexibility and resources necessary.”

Rep. Foxx noted that, “If the proposed rule is finalized, states, local workforce leaders, and employers will simply disengage and forgo the federal government’s tarnished stamp of approval as they set out to build their own apprenticeship systems that are responsive to the ever-changing demands of the economy.” Several state workforce development agencies, including the America First Policy Institute, submitted comments opposing the DOL’s proposal and its efforts to restrict state-led innovation and governance of their apprenticeship systems.

Likewise, a group of 24 state attorneys general submitted a comment letter asserting that the NPRM’s efforts to promote diversity, equity and inclusion in GRAP regulations exceeds the DOL’s authority and promotes racial discrimination.

As highlighted in ABC’s comments, in February, ABC conducted a survey of ABC members and ABC chapters, which confirmed that the proposed rule would discourage GRAP participation. According to the survey:

  • 90% of ABC member contractor respondents said they would be less likely to start their own company-run GRAP as a result of the DOL’s proposed changes
  • 94% of respondents believe the proposed rule will increase the cost of participating in or starting a GRAP
  • 96% of respondents said new recordkeeping and reporting requirements will make them less likely to participate in or start their own GRAP
  • 95% of all respondents said apprentice participation and completion in GRAPs is less likely as a result of the DOL’s proposal
  • 98% of all respondents said small businesses are less likely to participate or continue participating in GRAPs as a result of the DOL’s proposed changes

The NPRM also proposes significant changes to the career and technical education ecosystem utilized by ABC members and ABC chapters, as discussed in ABC’s comments. Additional comments filed by the Association for Career and Technical Education address many of these concerns in detail.

In addition, ABC signed a comment letter submitted by the Jobs and Careers Coalition and 13 other trade associations raising numerous concerns with the NPRM.  

Separately from the DOL proposed rule, President Joe Biden’s March 6 Executive Order 14119, Scaling and Expanding the Use of Registered Apprenticeships in Industries and the Federal Government and Promoting Labor-Management Forums, seeks to expand the use of GRAPs by the federal government.

The order directs federal agencies to identify where they can implement new requirements or incentives for federal contractors and recipients of federal financial assistance to employ workers who are active participants or graduates of a GRAP.

While specific details on how these new requirements will be implemented are not yet available until a separate rulemaking is completed, ABC is concerned that any new mandates or incentives on federal contracts and grants will reduce competition from contractors that choose not to participate in the GRAP system or lack access to these programs.

The Biden EO also undermines the NPRM’s inadequate regulatory cost analysis on small businesses and other stakeholders, according to ABC’s comments.

ABC champions government-registered apprenticeships as part of a diverse, all-of-the-above solution to workforce development. ABC’s chapters are educating craft, safety and management professionals using innovative and flexible learning models like just-in-time task training, competency-based progression and work-based learning, in addition to more than 450 federal and state GRAPs in more than 20 different occupations across America, in order to develop a safe, skilled and productive workforce. 

ABC members invested an estimated $1.5 billion in construction industry workforce development to upskill 1.3 million course attendees in 2022, including hundreds of GRAPs administered independently by ABC member companies.

More information on the proposed rule is available at abc.org/apprenticeship.

On March 8, the U.S. District Court for the Eastern District of Texas vacated the National Labor Relations Board’s 2023 Joint Employer Final Rule and the Board’s rescission of the ABC-supported 2020 Joint Employer Final Rule. Under the court’s decision, the 2020 final rule, which provides clear criteria for companies to apply when determining their joint employer status, remains in effect today. ABC opposed the 2023 final rule, which was scheduled to go into effect on March 11. According to a NLRB press release, “The Agency is reviewing the decision and actively considering next steps in this case.” To learn more about the federal court’s decision, read ABC general counsel’s Littler Mendelson’s analysis.

Following the decision, ABC issued a press release, stating:

“We are pleased the court has blocked the NLRB’s radical and overbroad joint employer standard, which would have disrupted long-established, efficient operational processes that are followed by construction service providers who work together to build America,” said Ben Brubeck, ABC vice president of regulatory, labor and state affairs. “Under the 2023 final rule, contractors would be vulnerable to increased liability and risk, making them less likely to hire subcontractors, most of which are small businesses. The rule clearly would have had a harmful effect on a significant segment of the construction industry: small businesses.

“By reinstating the 2020 final rule, contractors will be better able to work and coordinate with multiple employers without fear of being unexpectedly and unfairly found to be joint employers,” said Brubeck.

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 for acting arbitrarily and capriciously in violation of the Administrative Procedure Act. On Feb. 22, 2024, the judge in the case delayed the final rule’s effective date from Feb. 26 to March 11. The 2023 final rule rescinded the ABC-supported 2020 NLRB joint employer final rule.

Please continue to monitor Newsline for updates on the lawsuit. 

On March 14, the ABC-led Coalition for a Democratic Workplace sent a letter to the leaders of key subcommittees in the U.S. House and U.S. Senate urging them to protect secret ballots in union representation elections.

The coalition said the U.S. House and Senate Appropriations Subcommittees on Labor, Health and Human Services, Education, and Related Agencies should maintain a bipartisan policy rider that prohibits the National Labor Relations Board from implementing electronic voting in union elections. 

“Congress, the NLRB, federal courts and stakeholders have all recognized that secret ballots in union representation elections are the best means for ensuring workers can freely vote their conscience and for guaranteeing secure and credible elections,” said Kristen Swearingen, chair of CDW and ABC vice president of legislative & political affairs, in a statement.

“Electronic voting, on the other hand, would break with NLRB precedent, increase the risk of coercion and fraud in representation elections and waste the NLRB’s limited resources,” said Swearingen.

The coalition also urged Congress to use the appropriations process to rein in the NLRB’s behavior and condition increases to NLRB funding on additional riders that limit expansion of its authority.

The letter comes in response to several House Democrats and President Joe Biden requesting the rider be eliminated in the FY 25 labor appropriations package.

US Department of Homeland Security Updates Immigration-Related Forms, Fees and Penalties

For 2024, employers should be aware of changes at the U.S. Department of Homeland Security relating to immigration and employment. Specifically, U.S. Citizenship and Immigration Services has updated employment-based visa request forms and fees, while penalties administered by Immigration and Customs Enforcement increased in compliance with the Federal Civil Penalties Inflation Adjustment Act of 2015.

USCIS Publishes New Forms and Fees Effective April 1

On Jan. 30, the U.S. Citizenship and Immigration Services issued a final rule to adjust certain immigration and naturalization benefit request fees for the first time since 2016. The new fees under the final rule will go into effect on April 1. According to the press release, the USCIS encourages stakeholders to visit the Frequently Asked Questions page on its website to view a full list of the revised forms that will go into effect on April 1, along with the new fees. For more information on USCIS and its programs, please visit uscis.gov.

Immigration-Related Penalties Increase in 2024

On Feb. 13, Immigration and Customs Enforcement began assessing increased penalties for employment-related violations as required by the Federal Civil Penalties Inflation Adjustment Act of 2015, which mandates penalties adjust with inflation. ABC General Counsel Littler Mendelson published an analysis of the penalty increases and  recommends “all employers to pay careful attention to their I-9 forms and strongly consider conducting an internal I-9 audit in order to remediate, as much as possible, the I-9 errors.” Employers are advised to contact their immigration or employment counsel with questions.

On April 30, the U.S. Equal Employment Opportunity Commission will begin accepting 2023 EEO-1 Component 1 reports. According to the EEOC, “The EEO-1 Component 1 report is a mandatory annual data collection that requires all private sector employers with 100 or more employees, and federal contractors with 50 or more employees meeting certain criteria, to submit workforce demographic data, including data by job category and sex and race or ethnicity, to the EEOC.”

The deadline to file the 2023 EEO-1 Component 1 report is June 4.

The EEOC has created an online Filer Support Message Center (i.e., filer help desk) to “assist filers with any questions they may have regarding the 2023 collection.” Filers may also refer to the 2023 EEO-1 Component 1 Instruction Booklet.

All updates about the 2023 EEO-1 Component 1 data collection will be posted to www.eeocdata.org/eeo1 as they become available. 

Learn more about the EEOC.

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