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Upload your OSHA 300A electronically by March 2 if your NAICS code begins with 23 and have 20 or more employees in an establishment. New additional requirements for 2024, if your NACIS code begins with 2381 and you have 100 or more employees in an establishment, you will also have to upload your OSHA 300 log (after removing data from column B) and the OSHA 301 for each recordable incident (after removing data from field 1, 2, 6 and 7).

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?

  • Establishments with 100 or more employees in certain high-hazard industries are required to electronically submit information from their OSHA Forms 300 and 301 to OSHA once a year. They are also required to include their legal company name when making electronic submissions to OSHA.
  • Establishments with 20 to 249 employees in certain high-hazard industries will continue to be required to electronically submit information from their OSHA Form 300A annual summary to OSHA once a year.
  • Establishments with 250 or more employees that must routinely keep records under OSHA’s injury and illness regulation will also continue to be required to electronically submit information from their Form 300A to OSHA once a year.
  • The data must be electronically submitted through OSHA’s ITA.

More Information:

In June 2022, ABC submitted comments urging OSHA to withdraw the proposed rule.

 For more information click here (https://www.osha.gov/recordkeeping). And while you are reviewing all this data, go ahead and submit your 2024 STEP Safety Management System data by clicking here (https://step.abc.org/Step/WelcomePage).

The National Labor Relations Board’s joint employer rule will go into effect on Feb. 26. The new standard, opposed by ABC, will only be applied to cases filed after the rule becomes effective.

The NLRB’s joint employer final rule will disrupt long-established, efficient operational processes followed by construction service providers that work together to build America. As a result of the confusion and policy whiplash caused by this overbroad standard, contractors will be vulnerable to increased liability and risk, making them less likely to hire subcontractors, most of which are small businesses.

On Nov. 16, 2023, the NLRB extended the effective date of its final rule on Joint Employer Status Under the National Labor Relations Act from Dec. 26 to Feb. 26, 2024.

On Nov. 9, 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. The final rule takes an ax to the ABC-supported 2020 NLRB joint employer final rule, which provided clear criteria for companies to apply when determining status.

On Dec. 7, 2022, ABC submitted comments to the NLRB, urging the Board to withdraw the new proposed rule.

Resources:

ABC is conducting an important survey of contractor members and chapter staff to gauge opinions on the U.S Department of Labor’s controversial proposed rule, which significantly overhauls regulations for government-registered apprenticeship programs. Ensuring as many members and chapters as possible respond to this survey will be vital so ABC can provide effective, informed comments that seek regulatory clarity and push back against concerning aspects of the DOL’s proposed rule. ABC has extended the survey deadline to Feb. 22 at 11:59 p.m. ET.

Background

On Jan. 17, 2024, the Federal Register published a controversial 626-page 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.

The proposal would make significant changes to how employer and chapter GRAPs are approved and run, adding more recordkeeping and paperwork requirements while also eliminating flexible competency-based approaches to workforce development in certain circumstances. ABC is concerned that the rule would undermine ABC’s and the construction industry’s investments in GRAPs, which are a key component of ABC’s all-of-the above approach addressing the construction industry’s skilled labor shortage of 501,000 in 2024 alone. ABC is a major participant in the GRAP system, with over 450 government-registered apprenticeship programs operated by chapters across the country.

On Jan. 30, ABC conducted a webinar to provide insight into the proposed rule’s impact on GRAPs. A recording of the webinar is now available on the ABC Academy website. Additionally, on Feb. 16, ABC members and National staff participated in a Small Business Administration roundtable and heard from DOL representatives regarding the rule. Members are encouraged to contact the SBA directly to provide feedback on the proposals impacts to small sponsors and employers. 

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. The proposed rule’s table of contents also provides links to specific aspects of the proposal.

ABC distributed the survey on Feb. 7. Please email [email protected] to receive the survey link or if you have any questions.

On Feb. 6, 2024, ABC and the Coalition for a Democratic Workplace sent a letter to two congressional committees urging them to use their oversight authority to rein in the National Labor Relations Board and its general counsel for creating significant tension between federal antidiscrimination law and federal labor law. The letter was sent in light of a recent supplemental decision in the Amazon.com Services LLC v. Gerald Bryson case, in which the NLRB held that Amazon illegally fired a worker who was verbally attacking a co-worker while on strike.  

The CDW argues that the NLRB is deliberately creating conflicts between federal antidiscrimination and labor laws, trapping employers in an impossible position with regard to compliance and potentially exposing workers to harassment and discrimination in the workplace. The letter, addressed to the U.S. Senate Health, Education, Labor and Pensions Committee and U.S. House of Representatives Education and the Workforce Committee, emphasizes that union organizers and supporters can advocate and organize without creating hostile work environments for other workers.

“The NLRB and its general counsel are putting employers into an impossible situation,” said Kristen Swearingen, CDW chair and ABC vice president of political & legislative affairs, in a news release. “Due to their efforts to protect union organizers and unionization campaigns at all costs, they’re demanding employers tolerate ‘profane, vulgar, racist, and otherwise insulting language’ in the workplace despite the clear conflict this would create with employers’ legal obligation to create a safe workplace for their workers.

“Employers must be able to act when discrimination or harassment occur in the workplace in order to protect their workers, but the Board and its general counsel are recklessly ignoring that reality,” said Swearingen. “Congress should demand answers from the Board and general counsel on why they’re pursuing this illogical interpretation of the law and exposing employees to dangerous work environments.”

On Feb. 9, the ABC-led Coalition for a Democratic Workplace and 15 employer organizations filed an amicus brief before the U.S. Court of Appeals for the 9th Circuit in Cemex Construction Materials Pacific v. NLRB, in which the National Labor Relations Board altered the union representation election process to essentially eliminate secret ballot elections in place of card check. The CDW called on the 9th Circuit to set aside and decline to enforce the NLRB’s order, which takes away employees’ right to choose representation without pressure or coercion.

The coalition wrote that the NLRB’s decision in Cemex is contrary to congressional intent by defaulting union representation to card check rather than via secret ballots and puts the burden on employers to call for an NLRB-supervised election rather than the union, as currently required. The brief also argues that the decision violates U.S. Supreme Court precedent in the Gissel case by making any unfair labor practice sufficient to support the issuance of a bargaining order against the employer, forcing the employer to recognize a union that may not have majority support from the workforce.

“The Cemex decision has upended the union representation process. Instead of workers voting via a private ballot on whether they want to unionize, unions can now coerce, intimidate and lie to workers to get them to sign authorization cards with no guarantee that a secret ballot election will ever be held,” said Kristen Swearingen, CDW chair and ABC vice president of political & legislative affairs, in a statement. “The Board pursued this policy despite the Supreme Court, federal appeals courts, and Congress all clearly stating that the secret ballot process is the only method that gives workers the privacy they need to truly vote their conscience on such an important issue.

“With this ruling, the Board has made it clear they do not want to protect workers’ privacy,” said Swearingen. “They do not want a fair and level playing field during unionization campaigns. They want to tip the scales in favor of unions at any expense, including the rights and wellbeing of workers. The Board’s Cemex decision should be set aside, and secret ballot elections should be protected at all costs.”

On Feb. 9, the U.S. Department of Labor’s Occupational Safety and Health Administration sent its Worker Walkaround Representative Designation Process final rule to the Office of Information and Regulatory Affairs at the Office of Management and Budget for final review. The rule would allow employees to choose a third-party representative, such as an outside union representative or community activist, to accompany an OSHA inspector into nonunion facilities. The review at the OIRA is usually the final step in the process before a rule is officially published in the Federal Register. ABC will be meeting with the OIRA to express its serious concerns about the rule.

On Nov. 13, 2023, ABC submitted comments in opposition to the proposed rule and urged OSHA to withdraw it. ABC also signed on to comments submitted by the Coalition for Workplace Safety and Construction Industry Safety CoalitionIn a press release about the proposed rule, ABC stated that “the Biden administration is trying to revive a failed Obama-era initiative, which was bad policy then and is bad policy now. This power grab does nothing to promote workplace health and safety, and instead pushes the administration’s ‘all-of-government’ agenda to encourage unions and collective bargaining. OSHA can have a bigger impact on jobsite safety by fostering positive partnerships with employers and promoting safety practices that produce results.” 

On Sept. 26, ABC joined 40 other CWS members in sending a letter to the U.S. House Education and the Workforce Committee’s Subcommittee on Workforce Protections calling out OSHA for its proposed rule and the politicization of the agency that the rulemaking exemplifies. Read CWS’s press release.

On Feb. 21, 2013, OSHA issued a letter of interpretation endorsing union representatives and other nonemployee third parties accompanying OSHA inspectors on walkaround inspections at nonunion workplaces, which ABC adamantly opposed, expressing serious concerns. OSHA eventually rescinded the letter of interpretation on April 25, 2017.  

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

ABC is conducting an important survey of contractor members and chapter staff to gauge opinions on the U.S Department of Labor’s controversial proposed rule, which significantly overhauls regulations for government-registered apprenticeship programs. Ensuring as many members and chapters as possible respond to this survey will be vital so ABC can provide effective, informed comments that seek regulatory clarity and push back against concerning aspects of the DOL’s proposed rule.

The proposal would make significant changes to how employer and chapter GRAPs are approved and run, adding more recordkeeping and paperwork requirements while also eliminating flexible competency-based approaches to workforce development in certain circumstances. ABC is concerned that the rule would undermine ABC and the construction industry’s investments in GRAPs, which is a key component of ABC’s all-of-the above approach addressing the construction industry’s skilled labor shortage of 501,000 in 2024 alone. ABC is a major participant in the GRAP system, with over 450 government-registered apprenticeship programs operated by chapters across the country.

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. The proposed rule’s table of contents also provides links to specific aspects of the proposal. Additionally, on Jan. 30, ABC conducted a webinar to provide insight into the proposed rule’s impact on GRAPs. A recording of the webinar is now available on the ABC Academy website.

ABC distributed the survey on Feb. 7. Please email Michael Altman at [email protected] to receive the survey link or if you have any questions. The survey will close at 5 p.m. ET on Feb. 21.

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:

  • Research and development expensing so businesses of all sizes can immediately deduct the cost of their U.S. R&D investments instead of over five years, supporting innovation and growth here at home.
  • 100% expensing for business investment in U.S. facilities, equipment and machines.
  • Increase in the maximum amount a taxpayer may expense from $1 million to $1.29 million for property placed in service starting in 2024.

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?

  • Establishments with 100 or more employees in certain high-hazard industries are required to electronically submit information from their OSHA Forms 300 and 301 to OSHA once a year. They are also required to include their legal company name when making electronic submissions to OSHA.
  • Establishments with 20 to 249 employees in certain high-hazard industries will continue to be required to electronically submit information from their OSHA Form 300A annual summary to OSHA once a year.
  • Establishments with 250 or more employees that must routinely keep records under OSHA’s injury and illness regulation will also continue to be required to electronically submit information from their Form 300A to OSHA once a year.
  • The data must be electronically submitted through OSHA’s ITA.

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:

  • Feb. 27
  • May 15
  • Aug. 29

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:

In December 2023, President Joe Biden announced a final rule implementing Executive Order 14063, which requires federal construction contracts of $35 million or more to be subjected to controversial project labor agreements. ABC issued a statement announcing plans to challenge the new rule in court.

On Jan. 4, ABC authored a coalition letter to Congress signed by 23 construction and business organizations opposing the final rule and urging members to co-sponsor the ABC-backed Fair and Open Competition Act. In addition, Ben Brubeck, ABC vice president of regulatory, labor and state affairs, authored a Fox Business op-ed on the Biden PLA rule, which ran on Jan. 4. Letters to the editor critical of the Biden PLA rule by ABC chapter leaders have also been published in print media.

On Jan. 12, a dozen pro-taxpayer groups sent a letter to Congress opposing the Biden rule and supporting FOCA.

Next Steps

The rule goes into effect on Jan. 22, 2024, and will take additional time for numerous federal agencies to implement in their procurement policies and forthcoming solicitations for construction services.

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. Of note, it describes when federal contracting officers shall require a PLA in a solicitation and how the PLA requirement can be waived under limited circumstances.

ABC members and chapters are encouraged to register for an ABC members-only webinar from 2 to 3:15 p.m. ET on Wednesday, Jan. 17, 2024, where experts will discuss the rule, the OMB memo and ABC’s legal, advocacy and public relations strategies to fight federal PLA requirements.

In the interim, 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].

In addition, ABC members are strongly encouraged to participate in this ABC Action grassroots campaign and ask 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.

Review ABC’s Jan. 3 Newsline article to learn more about the final rule.

On Jan. 9, the U.S. Department of Labor’s Wage and Hour Division 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. The final rule takes effect on March 11. Learn more about the 2024 final rule.

Immediately following the release of the 2024 final rule, ABC issued a statement opposing it, saying "it will cause workers who have long been properly classified as independent contractors in the construction industry to lose opportunities for work."

On Jan. 10, ABC, its Southeast Texas chapter, the Coalition for Workforce Innovation and the Financial Services Institute filed a motion in the U.S. Court of Appeals for the 5h Circuit requesting that it lift the stay of appeal and remand the case to the U.S. District Court for the Eastern District of Texas, Beaumont Division so that the district court may consider whether the 2024 final rule complies with the Administrative Procedure Act in its attempt to rescind and replace the current 2021 final rule. In 2022, the district court found that the DOL violated the APA when it first attempted to delay, and later attempted to withdraw the 2021 final rule; the court vacated these efforts and held that the 2021 final rule has been and remains in effect since March 8, 2021.

“The Biden administration cannot be allowed to undermine flexible work opportunities for millions of Americans who choose to work independently,” said Ben Brubeck, ABC vice president of regulatory, labor and state affairs.

Read the business coalition’s statement.   

On Dec. 14, 2023, the Biden administration announced a 779-page U.S. Department of Labor proposed rule that would make significant and controversial revisions to the National Apprenticeship System that will affect ABC members, ABC 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 is offering an ABC members-only webinar on the proposed rule where you will learn about the problematic and beneficial provisions of the rule and hear how you can best participate in regulatory and advocacy efforts to help improve this extensive regulation. Encourage ABC member and chapter education professionals, human resources, management professionals and other stakeholders to register to attend the webinar.

In addition, the U.S. Department of Labor’s Employment and Training Administration is sponsoring a webinar that's been postponed to a later date. Participants can expect to receive a summary of the Biden administration’s proposal from DOL officials. Register to attend the webinar.

DOL Proposal Widely Criticized

On Dec. 18, ABC issued a press release in response to the ABC-opposed proposal:

“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. 

ABC will also request feedback from 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.

The deadline for public comments on the DOL proposal will be 60 days after the proposal is published in the Federal Register.

Please contact Michael Altman for additional information.

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.

On Jan. 9, the U.S. Department of Labor’s Wage and Hour Division 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. The final rule takes effect on March 11, 2024.

Immediately following the release of the rule, ABC issued the following statement from Ben Brubeck, vice president of regulatory, labor and state affairs:

“By undermining the flexible, independent work for millions of Americans, President Joe Biden’s DOL is choosing to move forward with a final rule that creates an ambiguous and difficult-to-interpret standard for determining independent contractor status. Under the rule’s multifactor test, employers will now be forced to guess which factors should be given the greatest weight in making the determination. Instead of promoting much-needed economic growth and protecting legitimate independent contractors, the final rule will result in more confusion and expensive, time-consuming, unnecessary and often frivolous litigation, as both employers and workers will not understand who qualifies as an independent contractor.

“Regrettably, the confusion and uncertainty resulting from the final rule will cause workers who have long been properly classified as independent contractors in the construction industry to lose opportunities for work. Legitimate independent contractors are a vital part of the construction industry, providing specialized skills, entrepreneurial opportunities and stability during fluctuations of work common to the industry. They play an important role for large and small contractors, delivering construction projects safely, on time and on budget for their government and private customers. This move will jeopardize the ability of construction firms to continue the industry’s longstanding practice of utilizing legitimate independent contractors.”

The DOL issued FAQs, which discuss provisions of the final rule, including:

7. What analysis guides whether a worker is an employee or independent contractor under this final rule?

This final rule continues to affirm that a worker is not an independent contractor if they are, as matter of economic reality, economically dependent on an employer for work. Consistent with judicial precedent and the Department’s interpretive guidance prior to 2021, the final rule applies the following six factors to analyze employee or independent contractor status under the FLSA:

(1) opportunity for profit or loss depending on managerial skill;

(2) investments by the worker and the potential employer;

(3) degree of permanence of the work relationship;

(4) nature and degree of control;

(5) extent to which the work performed is an integral part of the potential employer’s business; and

(6) skill and initiative.

The final rule provides detailed guidance regarding the application of each of these six factors. No factor or set of factors among this list of six has a predetermined weight, and additional factors may be relevant if such factors in some way indicate whether the worker is in business for themself (i.e., an independent contractor), as opposed to being economically dependent on the employer for work (i.e., an employee under the FLSA).

10. How does the final rule differ from the Department’s 2021 Independent Contractor Rule?

This final rule differs from the guidance provided in the 2021 Independent Contractor Rule in several important ways. Specifically, consistent with the approach taken by federal courts, this final rule:

  • Returns to a totality-of-the-circumstances economic reality test, where no single factor or group of factors is assigned any predetermined weight;
  • Considers six factors (instead of five), including the investments made by the worker and the potential employer;
  • Provides additional analysis of the control factor, including a detailed discussion of how scheduling, supervision, price-setting, and the ability to work for others should be considered when analyzing the nature and degree of control over a worker;
  • Returns to the Department’s longstanding consideration of whether the work is integral to the employer’s business (rather than whether it is exclusively part of an “integrated unit of production”);
  • Provides additional context to some factors, including a discussion of exclusivity in the context of the permanency factor and initiative in the context of the skill factor; and
  • Omits a provision from the 2021 Independent Contractor Rule which minimized the relevance of an employer’s reserved but unexercised rights to control a worker.

 

To learn more about the final rule, read the DOL’s FAQs. and an analysis from ABC’s general counsel, Littler Mendelson.

ABC staff are continuing to analyze the 339-page final rule and will be offering a webinar for members in the near future. Continue to monitor Newsline for updates.

Background:

ABC strongly supported the 2021 final rule, which simplifies and clarifies the factors for determining when a worker is an independent contractor versus an employee under the FLSA. The Biden DOL froze and then rescinded the 2021 rule over the opposition of ABC and other industry associations.

In March 2021, ABC, its Southeast Texas chapter and the Coalition for Workforce Innovation filed suit against the DOL, which remains pending. In March 2022, the U.S. District Court for the Eastern District of Texas dealt a blow to the Biden administration’s efforts to delay and rescind the 2021 independent contractor final rule in that case. Under a decision applauded by ABC, the ABC-supported rule went into effect as scheduled on March 8, 2021.

In October 2022, the DOL announced a new proposed rule to rescind and replace the 2021 final rule and ABC submitted comments in opposition on Dec. 13. The DOL received approximately 55,400 comments in response to the proposed rule.

In December 2023, President Biden announced a final rule implementing Executive Order 14063, which requires federal construction contracts of $35 million or more to be subjected to controversial project labor agreements. ABC issued a statement announcing plans to challenge the new rule in court.

On Jan. 4, ABC authored a coalition letter to Congress signed by 23 organizations opposing the final rule and urging members to co-sponsor the ABC-backed Fair and Open Competition Act. In addition, Ben Brubeck, ABC vice president of regulatory, labor and state affairs, authored a Fox Business op-ed on the Biden PLA rule, which ran on Jan. 4.

ABC also urges members to contact their U.S. representative and senators to voice their opposition to the final rule and support for FOCA through the ABC Action Center.

In December 2023, ABC submitted comments as a steering committee member of the Construction Industry Safety Coalition and the Coalition for Workplace Safety in response to the Occupational Safety and Health Administration’s potential standard for Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings following its review of the Small Business Advocacy Review Panel materials and the SBAR Panel’s final report. In September, the SBAR Panel hosted six video conferences to gather input from small entity representatives. An ABC member participated as a SER during one of the video conferences. The panel’s final report was issued on Nov. 3.

CISC’s comments state, “The construction environment is inherently fluid and CISC has significant concerns with any regulatory approach that imposes prescriptive, complicated requirements on construction industry employers.

“The CISC urges OSHA to focus their regulatory approach on the key concepts of ‘Water, Rest, and Shade’ and provide construction employers the necessary flexibility to make such a standard effective. For the same reasons, the CISC reiterates their invitation for OSHA to consider a separate regulatory approach for the construction industry, as OSHA has done in other rulemakings.” 

CWS’ comments state, “The CWS supports recommendations expressed in the Panel Report, and in other comments submitted to the agency, recognizing that flexibility, versus a ‘one-size-fits-all’ standard, is necessary for employers to prevent or mitigate heat-related injuries and illnesses in their workplaces the most effectively.” Read CWS’ press release.

In January 2022, ABC, as a steering committee member of the CISC, also submitted comments in response to the Advance Notice of Proposed Rulemaking on Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings.

Additional OSHA Actions:

On April 12, 2022, OSHA announced a National Emphasis Program on Outdoor and Indoor Heat-Related Hazards, which sets out a targeted enforcement effort and reiterates OSHA’s compliance assistance and outreach efforts.

On July 27, 2023, OSHA issued a heat hazard alert to remind employers of their obligation to protect workers against heat illness or injury in outdoor and indoor workplaces. The agency also announced that OSHA will intensify its enforcement where workers are exposed to heat hazards, with increased inspections in high-risk industries like construction and agriculture. These actions will fully implement OSHA’s National Emphasis Program on heat, announced in April 2022, to focus enforcement efforts in geographic areas and industries with the most vulnerable workers.

On Sept. 29, OSHA issued new resources to protect workers from the effects of heat.

ABC strongly supports worker safety and protection from heat injury and illness, while maintaining flexibility for the fluid nature of the construction environment. Employers play a key role in providing training and awareness regarding heat protection, and ABC will continue to support members in ensuring preparedness for heat-related issues through a wide range of resources.

Learn more about OSHA’s Heat Illness Prevention Campaign

On Dec. 14, 2023, the Biden administration announced a U.S. Department of Labor proposed rule that would make significant and controversial revisions to the National Apprenticeship System.

On Dec. 18, ABC issued a press release in response to the ABC-opposed proposal:

“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. 

ABC will also request feedback from 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 government-registered apprenticeship system.

Public comments on the DOL proposal must be submitted in early March, which is 60 days after the proposal is expected to be published in the Federal Register later this week.

Please contact Michael Altman for additional information.

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.

On Dec. 22, 2023, the Biden administration published the long-awaited Federal Acquisition Regulatory Council’s final rule, Use of Project Labor Agreements for Federal Construction Projects, implementing 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.

On Dec. 18, ABC issued a statement in response to the White House announcement of the new ABC-opposed rule.

“The Biden administration’s burdensome, inflationary and anti-competitive PLA mandate rule will needlessly raise costs on taxpayer-funded construction projects and steer contracts to unionized contractors and workers,” said Ben Brubeck, ABC vice president of regulatory, labor and state affairs. “Absent a successful legal challenge, this executive overreach will reward powerful special interests with government construction contracts at the expense of taxpayers and the principles of free enterprise and fair and open competition in government procurement.

“When mandated by governments, PLAs increase construction costs to taxpayers by 12% to 20%, reduce opportunities for qualified contractors and their skilled craft professionals and exacerbate the construction industry’s worker shortage of more than half a million people in 2023,” said Brubeck. “ABC will continue to fight on behalf of quality, experienced contractors harmed by this rule and the 88.3% of America’s construction industry who have made the choice not to belong to a union and want a fair opportunity to participate in federal construction projects––but cannot do so because of PLA schemes.

“In addition, ABC condemns Biden administration policies independent of this rulemaking that push PLAs on competitive grant programs administered by federal agencies, affecting nearly $260 billion worth of federally assisted infrastructure projects procured by state and local governments, as well as schemes by the Biden administration to coerce private developers of hundreds of billions of dollars’ worth of clean energy and domestic microchip manufacturing projects to mandate PLAs. Biden’s PLA policies circumvent congressional intent as none of these policies were passed in funding legislation.

“ABC plans to challenge this Biden administration scheme in the courts on behalf of taxpayers and the majority of the construction industry,” said Brubeck. “In the interim, ABC will continue to oppose its special interest-favoring policy using all tools in our advocacy and legal toolbox while educating stakeholders about the negative impact of government-mandated PLAs on federal and federally assisted projects.”

ABC’s comments were picked up in dozens of industry publications and media reports.

Next Steps

The rule goes into effect on Jan. 22, 2024, and will take additional time for numerous federal agencies to implement in their procurement policies and forthcoming solicitations for construction services.

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. Of note, it describes when federal contracting officers shall require a PLA in a solicitation and how the PLA requirement can be waived under limited circumstances.

ABC members and chapters are encouraged to register for an ABC members-only webinar from 2 to 3:15 p.m. ET on Wednesday, Jan. 17, 2024, where experts will discuss the rule, the OMB memo and ABC’s legal, advocacy and public relations strategies to fight federal PLA requirements.

In the interim, 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].

In addition, ABC members are strongly encouraged to participate in this ABC Action grassroots campaign and ask 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.

Background on President Biden’s Executive Order 14063

On Feb. 4, 2022, President Biden signed EO 14063, requiring federal construction contracts greater than $35 million to be subjected to PLAs. ABC blasted the EO, calling it anti-competitive for small businesses and costly for taxpayers.

On Aug. 19, 2022, the Federal Acquisition Regulatory Council issued its proposed rule implementing EO 14063.

In October 2022, ABC submitted more than 40 pages of comments to the Federal Acquisition Regulatory Council, calling on the Biden administration to withdraw its controversial proposed rule.

ABC’s opposition was shared by more than 50 members of the U.S. Senate and U.S. House of Representatives, 19 Republican governors and a diverse coalition of construction industry, small business and taxpayer advocates urging the administration to withdraw its proposal and additional policies promoting PLA mandates on federal and federally assisted construction projects.

At least 8,000 stakeholders across the country––including 2,500 ABC member contractors––submitted comments opposed to this proposed rule during the 60-day comment period. According to a September 2022 survey of ABC contractor members, 98% oppose this proposed rule. Additionally, 97% said a construction contract that required a PLA would be more expensive compared to a contract procured via fair and open competition.

The new Biden administration policy replaces President Barack Obama’s 2009 Executive Order 13502, which encouraged, but did not require, federal agencies to mandate PLAs on large-scale federal construction projects exceeding $25 million in total value on a case-by-case basis.

According to government data, of the 2,499 large-scale federal construction contracts valued at $165.6 billion procured from FY 2009 to FY 2023 subject to President Obama’s pro-PLA policy, federal agency contracting officers chose to require PLAs on just 12 large-scale federal construction contracts. There were no reports of widespread cost overruns, delays, labor unrest or poor-quality construction on $164.4 billion worth of non-PLA projects during this time period, indicating that PLA mandates are not needed to ensure economy and efficiency in government contracting.

The Biden administration expects its mandatory PLA rule to affect about 120 federal contracts valued at $10 to $14 billion per year, in total.

ABC and a diverse construction industry coalition strongly support the Fair and Open Competition Act (H.R. 1209/S. 537)––reintroduced in the 118th Congress by Sen. Todd Young, R-Ind., and Rep. James Comer, R-Ky.––which prohibits government-mandated PLAs on federal and federally assisted projects and helps taxpayers get the best possible product at the best possible price.  

Members of the U.S. House and Senate supportive of the Fair and Open Competition Act have written letters to the White House in opposition to anti-competitive, pro-PLA policies championed by the Biden administration.

Currently, 25 states restrict government-mandated PLAs on state, state-assisted and local construction projects to some degree, which has protected more than $1 trillion worth of taxpayer-funded construction projects since 2007. Governors also filed comments with the FAR Council and, in April 2022, expressed disappointment in White House efforts to push government-mandated PLAs on federally assisted construction projects through infrastructure grant programs administered by federal agencies.

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.

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