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While the U.S. House of Representatives passed the ABC-supported Tax Relief for American Families and Workers Act last week, the bill still has an uncertain pathway in the U.S. Senate, where Republicans have taken a harder line against the proposal, calling for an amendment process. Sen. John Thune, R-S.D., said the expanded Child Tax Credit in the deal is the biggest issue for the GOP.
Key to ABC members and the construction industry are the bill’s provisions to expand innovation and competitiveness with pro-growth economic policies that include:
View more information on the bill and committee markup here. ABC will continue to provide updates on the bill’s progress.
The U.S. Department of Labor’s Occupational Safety and Health Administration is hosting a webinar on electronically submitting workplace injury and illness data using the Injury Tracking Application on Feb. 7 from 1-2 p.m. ET. Registration is free.
Establishments that meet certain size and industry criteria are required to electronically submit injury and illness data from their OSHA Form 300A, 300 and 301 (or equivalent forms) annually to OSHA no later than March 2. OSHA collects this work-related injury and illness data through the ITA, which also includes answers to frequently asked questions. Also, see the Protecting Personally Identifiable Information fact sheet, which explains how establishments can avoid submitting PII through the ITA.
To determine whether you are required to submit this data, visit the ITA Coverage Application. This application only applies to establishments located in states under Federal OSHA jurisdiction. If your establishment is located in a State Plan State, please contact their OSH plan for guidance.
Background:
On July 21, 2023, the U.S. Department of Labor’s Occupational Safety and Health Administration issued its Improve Tracking of Workplace Injuries and Illnesses final rule, which undoes the ABC-supported provisions of the 2019 final rule promulgated under the Trump administration and reprises the 2016 Obama-era rule. The final rule went into effect on Jan. 1, 2024, for certain employers and OSHA intends to make much of the data it collects publicly available online.
In a press release, ABC announced its opposition to the final rule. “Unfortunately, the Biden administration is moving forward with a final rule that does nothing to achieve OSHA’s stated goal of reducing injuries and illnesses,” said Ben Brubeck, ABC vice president of regulatory, labor and state affairs. “Instead, the final rule will force employers to disclose sensitive information to the public that can easily be manipulated, mischaracterized and misused for reasons wholly unrelated to safety, as well as subject employers to illegitimate attacks and employees to violations of their privacy.”
What does the final rule do?
More Information:
In June 2022, ABC submitted comments urging OSHA to withdraw the proposed rule.
On Jan. 30, the Federal Acquisition Regulatory Council released a 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.
Comments on the proposed rule are due April 1. ABC will be analyzing the proposed rule and participating in the regulatory process.
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:
Registration via the DOL’s website is required to attend the seminars.
On Jan. 30, 2024, ABC submitted a letter requesting a 30-day extension of the comment period on the U.S. Department of Defense’s proposed rule and guidance documents implementing the Cybersecurity Maturity Model Certification 2.0 Program.
As proposed, CMMC 2.0 would require federal contractors and subcontractors competing for DOD contracts to demonstrate continued compliance with a range of cybersecurity measures to maintain eligibility for performing and winning new federal awards.
ABC’s letter urges the DOD to provide additional time for comments beyond the current 60-day period, considering the extensive new cybersecurity requirements that were proposed by the agency.
The new requirements would apply to all contractors and subcontractors 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, dependent on the data involved in a specific contract. More than 200,000 companies in the defense industrial base could be affected by the rule.
On Jan. 25, 2023, ABC hosted a webinar, “Cybersecurity Maturity Model Requirements for ABC Members Doing Federal Work,” with two cybersecurity experts who provided practical tips and best practices for businesses to assess their cybersecurity readiness in advance of complying with CMMC 2.0. Additional information and resources are available on ABC’s Cybersecurity Resource Guide website.
Comments on the proposed rule are due to the DOD by Feb. 26.
To inform ABC’s comments on the proposal, ABC members are encouraged to submit feedback or questions to Michael Altman at [email protected].
The Federal Acquisition Regulatory Council’s final rule, Use of Project Labor Agreements for Federal Construction Projects, took effect on Jan. 22. The final rule implements President Joe Biden’s Executive Order 14063, which requires federal construction contracts of $35 million or more to be subjected to controversial project labor agreements.
ABC previously issued a statement condemning the anti-competitive and inflationary rule and continues to explore options for challenging and overturning the regulation, including legal action and individual procurement bid protests. Language from the final rule has already begun to be implemented on some federal solicitations.
ABC members are encouraged to flag for ABC National’s advocacy team any solicitations with PLA requirements or pro-PLA language, as well as any federal agency PLA surveys, by emailing [email protected].
Of note, the Associated General Contractors filed suit in federal court in Louisiana on Jan. 10 seeking to block the final rule.
ABC stands ready to assist members seeking to bid on large-scale federal construction contracts in compliance with the final rule. ABC has drafted a Frequently Asked Questions guide to the PLA rule and other Biden pro-PLA policies to address common contractor and stakeholder inquiries.
ABC also recently hosted a webinar on the final rule, with a recording available for ABC members.
Additionally, a Dec. 18, 2023 White House Office of Management and Budget memo, M-24-06, Use of Project Labor Agreements on Federal Construction Projects, provides guidance about how this rule should be implemented by federal agencies and may be useful for contractors bidding on these projects.
ABC members are strongly encouraged to participate in this ABC Action grassroots campaign by asking their federal lawmakers to fight the Biden administration’s pro-PLA schemes and co-sponsor the Fair and Open Competition Act (H.R. 1209/S. 537), introduced in the 118th Congress by Rep. James Comer, R-Ky., and Sen. Todd Young, R-Ind.
To learn more about how corrupt government-mandated PLAs rig the competitive bidding process, hurt taxpayers and endanger plans to rebuild America’s infrastructure, visit BuildAmericaLocal.com, and access additional ABC resources at abc.org/pla.
The Biden administration continues to roll back Trump-era initiatives and institute new, pro-union policies that challenge ABC members’ ability to win work. ABC continues to fight against these proposed rules and regulations affecting merit shop contractors and advocate for open competition and free enterprise.
ABC’s Regulatory Roundup is updated on a regular basis and includes information about federal regulations, guidance and compliance materials from the U.S. Department of Labor, U.S. Department of the Treasury, Federal Acquisition Regulation Council, National Labor Relations Board, Federal Trade Commission, Environmental Protection Agency and Council on Environmental Quality.
Read ABC’s January Regulatory Roundup to learn more about the latest developments affecting the construction industry.
The Construction Specifications Institute is looking for new members on its MasterFormat Task Team—a group of eight specification, architecture, engineering, construction and owner professionals selected to serve the industry by investing time, expertise and effort in the updating and maintenance of the MasterFormat classification standard. The deadline to apply is Jan. 30.
Founded in 1948, CSI is a national not-for-profit association of more than 6,000 members dedicated to improving the communication of construction information throughout continuous development and transformation of standards and formats, education and certification of professionals to improve project delivery processes. CSI members work tirelessly to effectively communicate the designers’ vision, the material producers’ solutions and the constructors’ techniques to create outstanding facilities that meet facility owners’ objectives.
Through regular meetings and industry interface, as well as interfacing with the CSI Standards Steering Committee and CSI staff, the MasterFormat Task Team will review proposed changes from the community, solicit input from industry stakeholders and work to finalize a proposal to the CSI Standards Steering Committee for finalization.
This position is open to CSI members and nonmembers, and applicants should be an influencer in the AECO industry.
Task Team members serve a two-year term beginning Jan. 1, 2024. Two virtual meetings are held monthly, with ad hoc meetings as needed. The approximate time commitment for the volunteer will be 10-15 hours monthly, inclusive of task team meetings and review of proposals.
For more information on and to apply, visit the MasterFormat Task Team page on CSI’s website.
On Jan. 17, 2024, the Federal Register published the controversial 626-page U.S. Department of Labor proposed rule that would make significant revisions to the National Apprenticeship System that will affect ABC members, chapters, apprentices and other industry stakeholders participating in government-registered apprenticeship programs.
On Jan. 30, 2024, from 2 to 3:15 p.m. ET, ABC offered a members-only webinar on the proposed rule regarding the problematic and beneficial provisions of the rule and how to best participate in regulatory and advocacy efforts to help improve this extensive regulation. Watch the archived webinar on ABC’s Academy, which is available to ABC members in management positions and chapter staff. To obtain login information, ABC members should fill out the online Academy Login Request Form.
In addition, the U.S. Department of Labor’s Employment and Training Administration abruptly cancelled its Jan. 11 webinar summarizing the proposed rule. The webinar has been rescheduled for Jan. 25 at 2 p.m. ET.
The deadline for public comments on the DOL proposal is March 18, 60 days after the proposal was published in the Federal Register. ABC submitted a request to extend the deadline by 30 days.
DOL Proposal Widely Criticized
On Dec. 18, ABC issued a press release in response to the ABC-opposed proposal, which the DOL published a preliminary version of on Dec. 14:
“ABC supports government-registered apprenticeship programs and offers more than 450 such education programs across the country as part of its all-of-the-above approach to meet the workforce needs of the construction industry,” said Ben Brubeck, ABC vice president of regulatory, labor and state affairs. “ABC is thoroughly reviewing the Biden DOL’s overreaching, 779-page proposal and is concerned that aspects of the proposed rule will limit the number of apprentices and employers participating in GRAPs.
“Already, the government-registered apprenticeship system is woefully inadequate in meeting the workforce needs of the construction industry,” said Brubeck. “Recent data suggests that it would take 12 years for the current broken GRAP system to educate the more than half a million workers needed by the construction industry in 2023 alone. Additional unclear and onerous requirements in the DOL proposal are likely to exacerbate the construction industry’s skilled labor shortage.
“The misguided proposal will discourage employer participation in the GRAP system by adding more bureaucracy and paperwork requirements while also eliminating flexible competency-based approaches to workforce development that benefit apprentices and employers,” said Brubeck. “As currently written, the Biden’s proposal threatens to undermine significant investments recently made by taxpayers in infrastructure, clean energy and manufacturing projects procured by government and private owners.”
The Biden DOL’s proposed rule was also panned by both the chairwoman of the U.S. House Education and the Workforce Committee Virginia Foxx, R-N.C., and the ranking member of the Senate HELP Committee Bill Cassidy, R-La.
Rep. Foxx’s statement derided the new rule, stating, “If the goal was to make an already dysfunctional registered apprenticeship system less workable and relevant to the needs of workers and employers, this proposed rule appears likely to succeed.”
Sen. Cassidy’s statement criticized the rule’s circumvention of Congress, seeking to implement a new regulation “395 times longer than the legislation it is supposedly interpreting.” According to Cassidy’s statement:
“The regulations would inject political ideology into the National Apprenticeship System, including diversity, equity, and inclusion (DEI) policies. The rule would allow DOL to dissolve the apprenticeship programs of employers accused by labor unions of misconduct without a requirement that the charges are verified by the National Labor Relations Board (NLRB). This would empower unions to intimidate and coerce employers with baseless accusations. It would also give unions veto authority over new apprenticeship programs, limiting job training opportunities for American workers. This comes at a time when workforce shortages continue and the labor force participation rate remains well below pre-COVID levels.
“Additionally, the rule gives the U.S. Department of Labor’s Office of Apprenticeship and State Apprenticeship Agencies enforcement authority over labor disputes, a role already performed by the NLRB. Ultimately, the proposed regulation applies more bureaucracy to a system in need of flexibility when responding to pressing workforce needs.”
The Biden proposal was also roasted in a Wall Street Journal editorial (Biden to Apprentices, You’re Fired, Dec. 18):
“DOL’s manifest goal is to limit non-union programs that don’t result in more union jobs. The rule would let the department dissolve programs accused by unions of misconduct or found to be non-compliant with minor government regulations and DEI benchmarks.
“One result of DOL’s regulations will be fewer job-training opportunities for minorities. The rule will also undercut the Administration’s industrial policy and climate agenda. The Inflation Reduction Act’s myriad green energy tax credits require employers to utilize apprentices from government-approved programs. Good luck finding them.
“President Biden’s message to non-union apprentices: You’re fired.”
Next Steps
In the coming weeks, ABC will provide detailed analysis and resources on the proposal to construction industry stakeholders and government-registered apprenticeship program providers and participants.
For more information on the proposed rule, Apprenticeship for America has provided an overview of the rule and a section-by-section analysis of changes from the existing rule.
ABC will also request feedback from employers, chapters, the CTE community and other affected parties on aspects of the proposal that are problematic, as well as those that may be beneficial to the construction industry.
In addition, ABC will submit comments on the proposed rule and make recommendations that will help create a final rule that can deliver value to taxpayers, the construction industry workforce and employer participants in the GRAP system.
ABC members should register for the Jan. 30, 2024, webinar from 2 to 3:15 p.m. ET to learn more.
ABC is conducting an important survey of contractor members and chapter staff regarding the proposal. Please email [email protected] to receive the survey link or if you have any questions or comments regarding the survey or proposed rule. The survey will close at 5 p.m. ET on Feb. 21.
Additional Background
On May 9, 2023, an ABC-led coalition of construction and business associations submitted a letter to the Advisory Committee on Apprenticeships opposing the committee’s recommendations to the DOL for dramatic changes to the GRAP system. These recommendations included a proposal to establish a new “Quality Seal” program to give preferential treatment to GRAPs meeting certain requirements.
It appears that some aspects of the ACA’s recommendations opposed by the coalition were incorporated into the proposal, which is likely to undermine employer and employee participation in GRAP system.
Visit abc.org/workforce to learn how ABC is building the people who build America and contact Michael Altman to learn more about the proposal.
On Jan. 11, the U.S. Department of Labor issued a final rule to adjust for inflation the civil monetary penalties assessed or enforced by the DOL, pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990 as amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015. The Inflation Adjustment Act requires that the agency annually adjust its civil money penalty levels for inflation by Jan. 15 of each year. However, due to a federal holiday on Jan. 15, the new OSHA penalty amounts went into effect on Jan. 16.
OSHA’s maximum penalties for serious and other-than-serious violations will increase from $15,625 per violation to $16,131 per violation. The maximum penalty for willful or repeated violations will increase from $156,259 per violation to $161,323 per violation.
According to the DOL, states that operate their own Occupational Safety and Health Plans are required to adopt maximum penalty levels that are at least as effective as federal OSHA levels. State plans are not required to impose monetary penalties on state and local government employers.
DOL Resources: