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On June 11, the U.S. Department of Labor’s Occupational Safety and Health Administration sent its Heat Illness Prevention in Outdoor and Indoor Work Settings proposed rule to the Office of Information and Regulatory Affairs at the Office of Management and Budget for review. The text of the proposal is currently not available to the public. After OIRA completes its review of the rule, the rule will be published in the Federal Register. ABC will be meeting with the OIRA on the proposed rule.

ABC strongly supports worker safety and protection from heat injury and illness while maintaining flexibility for the fluid nature of the construction environment. Any regulatory approach must be simple and should integrate the key concepts of “water, rest and shade.” Employers play a key role in providing education 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.

Background:

On Oct. 27, 2021, OSHA issued an Advance Notice of Proposed Rulemaking on Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings, which requested information on how to implement regulations to prevent workers from hazardous heat. ABC, as a steering committee member of the Construction Industry Safety Coalition, submitted comments in response to the ANPRM on Jan. 26, 2022.

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 department 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 the agency’s National Emphasis Program on heat, announced in April 2022, to focus enforcement efforts in geographic areas and industries with the most vulnerable workers.

In September, OSHA held six Small Business Advocacy Review panel (also known as a SBREFA panel) meetings to gather input on a possible Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings rule. OSHA also issued new resources to protect workers from the effects of heat.

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 OSHA’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.

ABC, as a member of the Partnership to Protect Workplace Opportunity, called upon the U.S. Department of Labor’s Wage and Hour Division to stay the effective date of its final overtime rule to allow for judicial review, as there are currently several cases that could impact the validity of the new rule. The final rule is currently set to go into effect on July 1, 2024. Read the PPWO’s statement on the June 12 letter to the DOL.

 Postponing the effective date of a rulemaking while litigation is pending ensures that impacted businesses and the agency itself do not waste valuable resources by attempting to come into compliance or implement a rule that could be invalidated by a court,” the June 12 letter states. “For example, if the overtime rule is implemented, it will trigger significant costs for the employer community, but these costs can be avoided if a stay is granted by the Department of Labor and the courts eventually invalidate the rule.”

The letter further states, “Moreover, a stay of the overtime rule would also protect workers whose terms and conditions of employment may be negatively impacted by the policy changes within the rule. Many workers will be reclassified if the final rule goes into effect, resulting in them losing workplace status, access to benefits, flexible work arrangements, or career development opportunities. These changes should not be made lightly, as the resulting low employee morale and/or decrease in productivity cannot easily be recovered if the rule is eventually invalidated by the courts. When the Obama administration issued its final overtime regulation, the ensuing legal challenge resulted in the rule being struck down only a week before it went into effect. By then many employers had already adjusted employees’ statuses and were unable to undo those changes.”

On April 23, the DOL issued its final rule on overtime, which will change overtime regulations under the Fair Labor Standards Act. The final rule increases the minimum annual salary level threshold for exemption in two phases: from the current level of $35,568 to $43,888 on July 1, 2024, and to $58,656 on Jan. 1, 2025. In addition, the threshold for highly compensated employees will be increased from the current threshold of $107,432 to $132,964 on July 1, 2024, and then to $151,164 on Jan. 1, 2025. Further, salary thresholds will update every three years starting on July 1, 2027. Learn more about the final rule and read ABC’s press release opposing it.

The challenge with heat is twofold. First, the human body only has two ways of handling heat. And second, we are individually affected by heat in different ways. To win the battle with heat, we need to understand how heat affects us physically and mentally, the specific conditions of the jobsite and create a plan to effectively demonstrate our high degree of concern for everyone on the jobsite.

Your Health and Your Body’s Physical Response to Heat

The human body has limitations when dealing with extreme temperatures. It can only get rid of heat by radiating it to the environment and through the evaporation of sweat. The first is compromised once air temperature approaches body temperature. The second becomes ineffective once ambient air is too wet to absorb sweat.

Anything that affects a person’s physical health also impacts the person’s ability to respond to heat. This includes factors beyond physical fitness such as medication, caffeine, alcohol, nutrition, hydration, sleep and other personal factors. On the jobsite, we don’t always know the medical conditions of our co-workers or other factors that might impact their ability to handle the heat.

The Effects of Heat on the Brain

Physical safety and health are not the only concerns. The first natural response to heat is blood flowing closer to the skin (to radiate inner heat to the environment), and less blood flows to the working muscles and the brain. That’s why fatigue and mental exhaustion is an early symptom of heat stress. This also explains why another early symptom is diminished cognitive ability. This looks like uncharacteristic indecisiveness, being more forgetful, reduced focus on the task at hand and heightened irritability. For these reasons, it’s vital to create a culture of care that includes more check-ins, such as using a buddy system, in addition to increased water intake and frequent rest breaks in the shade to combat the effects of the combination of high heat, high humidity, radiant heat sources, low airflow and high metabolic activity.

Tips To Work Safely in the Heat

Self-care is vital to preparing ourselves for high-heat conditions. Sometimes we arrive to work already dehydrated, skip meals in the summer or get less sleep due to activities in the home or community. To work in the heat, we need to prepare ourselves by getting quality sleep, minimizing substance use (including caffeine), eating healthy meals and arriving at work with the mindset of showing greater grace and empathy to our co-workers.

The key point to remember is that we are all affected by heat differently. Just because you are OK does not mean that everyone is OK. If you are feeling symptomatic, speak up for yourself and others who might also be impacted but not realize it or lack the courage to speak up. Together, we can prevent heat injury and illness.


Looking for help building your safety program?

Discover resources available through ABC’s STEP Safety Management System and other health and safety topics at abc.org/safety.

For more information or assistance, please reach out to Joe Xavier or Aaron Braun.

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On June 17, the U.S. Department of Labor sent its controversial National Apprenticeship System Enhancements final rule to the Office of Information and Regulatory Affairs at the Office of Management and Budget for final review, the last step in the regulatory process before implementation. The proposed rule made significant and costly changes to government-registered apprenticeship programs that are likely to undermine the construction industry’s skilled labor shortage an existing workforce development programs. ABC will be meeting with the OIRA to express its serious concerns about the rule.

On March 18, ABC submitted 45 pages of comments on the DOL’s proposed rule, which will affect ABC members, chapters, apprentices and other industry stakeholders participating in government-registered apprenticeship programs, or GRAPs.

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

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

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

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

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

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

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

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

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

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

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

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

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

The NPRM also proposes significant changes to the career and technical education ecosystem utilized by ABC members and ABC chapters, as discussed in ABC’s comments.

Additional comments filed by the Association for Career and Technical Education address many of these concerns in detail.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Beam Club was established in 1966 to recognize ABC’s top membership recruiters for their commitment to growing the association. By recruiting five new members, ABC members are automatically enrolled in the Beam Club by their chapter.

Members receive one point for each new member recruited. Beam Club activity is ongoing from year to year, with members’ point totals continually accruing and advancing members to the next Beam Club award level.

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

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

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

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

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

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

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

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

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

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

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

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

Companies are ranked by construction revenue in 2023 in millions.

The list is available here

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

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

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

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

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

Background:

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

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

FTC Resources on the Final Rule:

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

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

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

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