On July 25, the ABC-led Coalition for a Democratic Workplace testified before a House subcommittee on the Protecting the Right to Organize Act (H.R. 2474), which would jeopardize workers’ privacy, constitutional rights and freedoms if passed. This legislation currently has 186 Democrat cosponsors and is essentially a “union boss wish list,” as Ranking Member Tim Walberg (R-Mich.) described it in his opening statement.

CDW, which is comprised of hundreds of organizations representing millions of businesses in the United States, has been leading the opposition to the PRO Act. In testimony before the Subcommittee on Health, Employment, Labor and Pensions on behalf of the CDW, G. Roger King, senior labor and employment counsel at HR Policy Association, said the bill would take the country’s labor laws backward and hurt many employers, employees and independent contractors.

There are currently 27 states that have adopted "right-to-work" laws, which guarantee workers can seek employment without fearing they will be required to join or pay dues to a union if they are hired. The PRO Act would remove these protections and effectively take away workers' right not to join a labor union. In addition, this bill would strip away workers' right to secret ballots elections, as well as their privacy rights. Forcing employers to divulge their workers' private information, like home addresses, shift schedules, telephone numbers and personal email addresses, to unions is another radical provision in the PRO Act and a fundamental breach of privacy that could lead to unwanted harassment.

You can read King’s full testimony here.

ABC supports the Highway Trust Fund Reform Act of 2019 (H.R. 3904), legislation introduced on July 24 by Rep. Virginia Foxx (R-N.C.) that would exempt federally funded or federally assisted Highway Trust Fund projects from federal Davis-Bacon requirements, known as prevailing wage. The Congressional Budget Office estimates that repealing Davis-Bacon would save the Federal Highway Administration more than $700 million a year.

Determined through an unscientific and fundamentally flawed survey process administered by the U.S. Department of Labor, prevailing wage requirements preclude a free-enterprise approach to awarding construction contracts based solely on merit and require ineffective and burdensome wage and work restrictions, which can drastically increase project costs. By eliminating Highway Trust Fund prevailing wage requirements, this legislation would ensure American taxpayers get the best possible products at the best possible price, especially when it comes to stretching tax dollars to fix our nation’s crumbling infrastructure.

“Transportation and infrastructure are key components of economic development efforts in North Carolina, and the Highway Trust Fund Reform Act would keep important road and bridge projects going in the short term while discussions continue on a long-term bill,” Rep. Foxx said. “The federal government can keep the Highway Trust Fund solvent and continue to fund important highway projects with the bill’s common-sense reforms to lower the cost of infrastructure contracts funded by the American taxpayer.”

On July 24, the U.S. House of Representatives passed the Rehabilitation for Multiemployer Pensions Act (H.R. 397) by a vote of 264-169 with 29 Republicans supporting the majority.

Advocates argue the measure is needed to protect the pensions of 1.3 million workers in certain multiemployer pension plans and prevent the collapse of the Pension Benefit Guaranty Corporation, while critics maintain the legislation is a taxpayer-funded bailout of MEPPs and does little to address the fundamental structural flaws of MEPPs.

“This legislation fails to include any reforms that would ensure responsible funding of future benefit promises or prevent a similar situation from recurring,” said Rep Virginia Foxx (R-N.C.) during the debate over H.R. 397 on the House floor. "The bill also fails to address the chronic underfunding that plagues the entire union multiemployer system and passively accepts that plan trustees and actuaries may continue to underestimate pension promises—to the detriment of workers and retirees.”

The House bill, also known as the Butch Lewis Act, was introduced by Rep. Richard Neal (D-Mass.), and a companion bill was introduced in the upper chamber by Sen. Sherrod Brown (D-Ohio).

In general, unionized construction trade contractors typically participate in a defined benefit MEPP, while nonunion contractors typically provide defined contribution plans such as a portable 401(k) retirement plan.

Lawmakers have pushed construction industry contractors and workers into MEPPs via so-called responsible contractor laws and government-mandated project labor agreements on taxpayer-funded construction projects. Nonunion contractors are typically wary of competing for contracts subject to such terms because MEPPs can expose contractors to potentially catastrophic liability and harm retirement prospects for its workforce if MEPPs fail.

If MEPPs become insolvent, they are taken over by the PBGC—an independent agency of the federal government that monitors and privately insures pension benefits in private sector defined-benefit plans such as multiemployer pension plans—and qualified individual beneficiaries may receive up to $12,870 per year in defined benefits in certain circumstances. However, because of a number of factors, including exposure to struggling MEPPs, the PBGC is projected to become insolvent around 2025, after which it will not be able to pay guaranteed benefits for insolvent MEPPs.

ABC analysis of data from the PBGC demonstrates the construction industry is responsible for almost half of the current PBGC-backed MEPP underfunding and is a primary contributor to projected future PBGC MEPP insurance program funding shortfalls.

Senate Majority Leader Mitch McConnell (R-Ky.) has not indicated whether the full Senate would take up the legislation.

ABC has not taken a position on the bill but will continue to monitor all legislative proposals concerning the PBGC and MEPPs and will continue to oppose government-mandated PLAs and other laws mandating contractor and employee participation in MEPPs.

Construction industry stakeholders interested in reviewing construction industry MEPPs in critical and declining, critical and endangered status from 2008 to Jan. 22, 2018, can search this spreadsheet or visit the DOL website on MEPPs.

On July 18, the U.S. Small Business Administration issued an interim final rule that will adjust monetary-based small business size standards for inflation to allow more small businesses to become eligible for the SBA’s loan and contracting programs.

The interim final rule lays out the new size standards by industry, which will be raised nearly 8.4% from current levels. Interested parties can view the new size standards beginning on page 34,269 in the Federal Register notice. The final rule is effective Aug. 19, 2019. SBA also invites public comment on the interim final rule, which is due Sept. 16, 2019.

According to an SBA press release, the agency is adjusting its size standards to reflect the inflation that has occurred since the last adjustment for inflation in 2014. The SBA estimates that nearly 90,000 additional businesses will gain small business status under the adjusted size standards, which could lead to as much as $750 million in additional federal contracts awarded to small businesses and up to 120 additional small business loans totaling nearly $65 million.

The SBA also recently issued a proposed rule to modify its method for calculating annual average receipts used to prescribe size standards for small businesses from a three-year averaging period to a five-year averaging period. The agency is soliciting comments on this proposal, which are are due Aug. 23, 2019.

The U.S. Department of Labor’s Occupational Safety and Health Administration has published several resources to protect workers from various hazards related to summertime weather, such as hot weather and hurricanes.

The agency recently released an OSHA Alert with the latest information and a list of safety practices to use when working in high temperatures and humid conditions. Additionally, the alert includes links to OSHA’s “Water. Rest. Shade.” and “Occupational Heat Exposure” webpages.

With hurricane season lasting from June 1 to Nov. 30, OSHA urges employers to be prepared to keep their workers safe during these extreme weather events. As part of this effort, the agency’s Emergency Preparedness and Response page provides information on protecting workers before and after hurricanes strike.

The webpage provides workers with links to the agency’s Preparedness page, which outlines the warnings and watches used for hurricanes, and Response/Recovery page, which features information on hazard exposures and risk assessments for hurricane response and recovery work.

Additional resources for hurricane preparedness can be found at the following websites:
FEMA.gov
Ready.gov/hurricanes
National Weather Service's Hurricane Preparedness Page

Please encourage your members and staff to visit ABC National’s webpage on emergency preparedness and recovery resources for detailed information on how to quickly access state and federal resources.

In a victory for ABC, New Hampshire Gov. Chris Sununu vetoed legislation that would have imposed prevailing wage requirements on state projects for the first time since the law was repealed in 1985 on July 19.

The state legislature, both chambers of which were taken over by Democrats in the 2018 midterm elections, passed the legislation during its now-adjourned 2019 session. The ABC New Hampshire/Vermont Chapter testified in opposition to SB 271 at public hearings throughout the legislative process and advocated for an executive veto after the legislation received final passage from the Senate in May.

In a press release lauding the move by Gov. Sununu, ABC New Hampshire/Vermont Chapter President Josh Reap said, “Taxpayers deserve the best possible product at the best possible price, and that’s exactly what Gov. Sununu has ensured by vetoing this bill.”

Gov. Sununu’s veto means that New Hampshire remains the only state in New England that doesn’t require prevailing wage on state projects, and one of 24 states nationally without a statewide prevailing wage law.

“In the midst of a booming economy with record low unemployment, the last thing we should do is reduce competition in our construction markets,” wrote Gov. Sununu in his veto message on SB 271.  

Last week, Timothy Mongeau, ABC’s director of workforce development, spoke on the Workforce Development for Veterans Through Apprenticeship panel during the National Association of Drug Court Professionals All Rise 2019 conference, the world's largest conference on addiction, mental health and justice reform.

The panelists, which included Dan McGuire, president of Clover Contracting Inc.; Danny Funderburk, learning and development, William A. Hazel Inc.; and Stacy Hester, president of 3C-Concepts and a veteran of the Marines, discussed ways to support veterans enrolled in veteran treatment court programs though career and education opportunities in industries like construction. Specifically, Mongeau discussed the construction industry’s apprenticeship model and education career path that stresses an earn-while-you-learn model and infinite room for professional growth.

ABC chapters are the ideal connection among the NADCP, more than 300 U.S. Department of Labor-registered apprenticeship programs across 20 different occupations and the 21,000-plus ABC member contractors that are actively recruiting veterans. This translates into support, stability, dignity and an opportunity to achieve the American Dream for the men and women who have protected the nation.

The NADCP is a national 501(c)(3) organization dedicated to educating and offering technical assistance to drug court, DWI court and veterans treatment court professionals. Treatment courts are the most successful intervention in the United States for leading veterans and others living with substance use and mental health disorders out of the justice system and into lives of recovery and stability.  To learn more, visit nadcp.org/treatment-courts-work. 

On July 15, the U.S. Equal Employment Opportunity Commission opened the online portal for the collection of data on pay and hours worked (or Component 2 data) for calendar years 2017 and 2018.

According to an EEOC press release, a data file upload function and validation process (in addition to the  data collection portal) is expected to be available for all filers no later than Aug. 15, 2019, as an alternative data collection method for employers who prefer to utilize data file upload capability. Information regarding the data file upload function is available on the Component 2 EEO-1 Online Filing System website.

The EEOC also recently added to the website additional resources for employers, including a sample form, an instruction booklet, a fact sheet, reference documents and a Frequently Asked Questions page. Additionally, the website lists help desk information to offer filers additional support. Interested parties can contact the help desk by phone at (877) 324-6214 or by emailing [email protected].

Background

In light of a recent court decision, certain employers will be required for the first time to submit detailed data on employee compensation and hours worked (or Component 2 data) for calendar years 2017 and 2018 to the EEOC as part of their annual EEO-1 form submission by Sept. 30, 2019.

According to the EEOC’s FAQs, certain employers, including federal contractors, are required to submit EEO-1 2017 and 2018 Component 2 compensation data:

Employers, including federal contractors, are required to submit Component 2 compensation data for 2017 if they had 100 or more employees during the 2017 workforce snapshot period. Employers, including federal contractors, are required to submit Component 2 compensation data for 2018 if they had 100 or more employees during the 2018 workforce snapshot period.
Federal contractors with 50-99 employees are not required to report Component 2 compensation data.
Federal contractors with 1-49 employees and other private employers with 1-99 employees are not required to file EEO-1 Component 1 data or Component 2 data.

The submission of Component 2 data was initiated during the Obama administration. However, under the Trump administration, the Office of Management and Budget blocked the EEOC from requiring employers to submit any compensation data. In March 2019, the D.C. District Court ordered the OMB stay to be vacated. 

ABC has been active in efforts to reverse the court’s decision or, at minimum, extend the time period for employers to comply with any new Component 2 pay data requirement. On May 3, the U.S. Department of Justice filed a notice of appeal of the court’s decision, but the outcome of the litigation is unclear at this time. The EEOC has since clarified that the appeal does not stay the district court orders or alter EEO-1 filers' obligations to submit Component 2 data, and EEO-1 filers should begin preparing to submit Component 2 data.

Seven of the eight top U.S. construction and engineering firms in a new ranking of corporate culture are ABC members. MIT Sloan Management Review and Glassdoor teamed up to introduce the Culture 500, the first-ever scientific ranking that compares the corporate cultures of more than 500 of the most powerful companies driving the American economy.

The Culture 500 applies artificial intelligence technology to Glassdoor’s plentiful data to rank corporations based on nine cultural dimensions: agility, collaboration, customer orientation, diversity, execution, innovation, integrity, performance and respect.

Within the construction and engineering industry, the ABC member companies with the highest agility were ranked as follows:

1. AECOM
2. Bechtel
4. Fluor
5. Jacobs
6. KBR
7. Kiewit
8. Turner

Learn more about the Culture 500 and find an interactive online tool to compare each of the nine cultural dimensions. 

As the New York state legislature adjourned in Albany, ABC’s Empire State Chapter members celebrated the successful blockage of an extremely onerous effort to expand prevailing wage in the state well beyond its typical applicability on public works projects. 

The effort, widely supported by Democrats in the legislature and Gov. Andrew Cuomo, sought to expand the definition of “public works” to a bevy of private projects receiving more than 30 percent of the project budget from public sources beyond direct public investment. This would have included things like tax-free bonds on affordable housing, various tax incentives on environmental cleanup work and energy-related tax credits, among other sources of public assistance. 

Unlike many prevailing wage states, as long as a union claims to represent 30% of the workforce, the state automatically adopts their wage and benefits for prevailing wage work. This expansion, on top of widening the pool of work for which it would be harder for merit shop contractors to compete, could have raised construction costs by as much as 30%. This would have severely harmed New York taxpayers, many of whom benefit from the projects with bottom lines that would have been negatively impacted by the proposed expansion.

Throughout the legislative session, the legislature and the governor’s office worked together to advance the measure through a variety of approaches, including a discussion about narrowing the scope of certain affordable housing projects to which the expansion would apply and even an effort to exclude New York City from the expansion altogether. However, in the face of widespread vocal opposition from ABC Empire Chapter and its members, as well as associated coalition groups, the bill was ultimately defeated. 

“There is no doubt that if passed, this bill would have crippled the construction industry,” said ABC Empire State Chapter President Brian Sampson. “Though this is a big victory for the chapter, the battle over expanding prevailing wage is not over, with Gov. Cuomo announcing that this is one of his top three priorities for 2020. We will continue to fight and advocate for even stronger protections against policies that damage the merit shop construction industry in the coming months and years.”