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ABC National staff and an ABC member testified at the June 27, 2024, U.S. House Oversight and Accountability Committee’s subcommittee hearing on President Biden’s controversial policies promoting and mandating anti-competitive and inflationary project labor agreements on federal and federally assisted projects.

The hearing, “Cutting Competition in Contracting: The Administration’s Pricey Project Labor Agreement Mandate”—held by the Subcommittee on Cybersecurity, Information Technology, and Government Innovation—gave ABC an important platform to shed light on the Biden administration’s controversial pro-PLA policies.

Ben Brubeck, ABC vice president of regulatory, labor and state affairs, provided written testimony and opening remarks attacking the Biden administration’s pro-PLA policies.

The opening statement and written testimony of Aric Dreher of Cianbro––an ABC member contractor headquartered in Pittsfield, Maine, building federal and federally assisted construction projects––described how Biden PLA policies injure Cianbro and other merit shop general contractors and subcontractors by reducing competition and harming the merit shop workforce. Cianbro signed an affidavit in support of ABC’s ongoing federal lawsuit in Jacksonville, Florida, against the Biden rule requiring PLAs on federal construction contracts of $35 million or more.

Check out this hearing recap for links to key video moments of the hearing.

ABC continues to fight for fair and open competition on taxpayer-funded construction projects. Find more information at the ABC-led federal coalition website, BuildAmericaLocal.com, and get details on the Biden administration’s PLA mandate policy on federal construction projects at abc.org/BidenPLAFAQs.

On June 28, 2024, the U.S. District Court for the Eastern District of Texas issued a decision in the Texas attorney general’s case challenging the U.S. Department of Labor’s final rule on Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales, and Computer Employees. The judge in the case issued a limited preliminary injunction blocking implementation of the rule for employees of the state of Texas only.

For the rest of the employer community in Texas and throughout the nation, the rule went into effect on July 1. The minimum salary threshold for exemption increased to $43,888, and the threshold for highly compensated employees increased to $132,964.

In the second phase of the DOL’s final rule, on Jan. 1, 2025, the minimum annual salary level threshold for exemption increases to $58,656 and the threshold for highly compensated employees increases to $151,164. Salary thresholds will then be automatically updated every three years, regardless of economic circumstances. ABC issued a news release opposing the rule, which was issued on April 23.

Overtime resources from the DOL:

For more information, read Littler Mendelson’s analysis of the overtime final rule and watch ABC’s webinar, “Learn About the DOL’s New Overtime Rule in 30 Minutes.”

On May 22, ABC joined a coalition of business groups in filing a complaint in the U.S. District Court for the Eastern District of Texas, Sherman Division, challenging the DOL’s overtime rule. Read ABC’s news release announcing the lawsuit and learn more about the pending overtime lawsuits. ABC will continue to provide updates on any new developments regarding the pending legal challenges.

Virtually all of ABC’s members employ workers who qualify for exempt status, and like the unlawful 2016 overtime rule, the DOL’s 2024 rule will reclassify a substantial amount of ABC member employees who currently qualify for exempt status as nonexempt. This will disrupt the entire construction industry, specifically harming small businesses, as the rule will greatly restrict employee workplace flexibility in setting schedules and hours, hurting career advancement opportunities.

In addition, the 2024 rule’s radical increase in the salary threshold for exemption will further complicate the current economic outlook. Multiple industries, like construction, are grappling with uncertain economic conditions such as inflation, supply chain disruptions, high materials prices and workforce shortages, all of which push operational costs ever higher. Specifically, ABC estimates that the construction industry must hire more than half a million additional workers in 2024 to meet demand. The rule’s triennial automatic indexing provision will exacerbate the harmful impact on businesses and add to rampant inflation that is already harming the economy.

On Nov. 7, 2023, ABC submitted comments to the DOL in response to the proposed rulemaking, calling on the DOL to withdraw it. ABC also signed onto coalition comments criticizing the overtime proposed rule, joining 244 national, state and local organizations representing employers from a wide range of private industry and public, nonprofit and education sectors.

On July 3, the U.S. District Court for the Northern District of Texas issued a limited preliminary  injunction and stay of the Federal Trade Commission’s noncompete final rule, holding that the FTC exceeded its statutory authority and violated the Administrative Procedure Act. The Court limited the scope of the injunctive relief to named plaintiff Ryan LLC and plaintiff-intervenors the Chamber of Commerce of the United States of America; the Business Roundtable; the Texas Association of Business; and the Longview Chamber of Commerce.

For any employer that was not a plaintiff or plaintiff-intervenor in the action, the noncompete rule is still set to take effect on Sept. 4, 2024, although the court’s opinion clearly casts doubt on the long-term viability of the noncompete rule,” said ABC general counsel Littler Mendelson’s analysis.

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 Federal Trade Commission’s final rule to ban noncompete clauses.

ABC members have valid business justifications for utilizing noncompete agreements, such as protecting confidential information and intellectual property.

Background

On April 23, the Federal Trade Commission voted 3-2 to issue its final rule to ban noncompete clauses.

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.

ABC issued a news release opposing the rule:

“The final rule to ban all noncompete agreements nationwide—except existing noncompetes for senior executives—is a radical departure from hundreds of years of legal precedent,” said Ben Brubeck, ABC vice president of regulatory, legal and state affairs. “Ultimately, this vastly overbroad rule will invalidate millions of reasonable contracts—including construction project 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.

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.

On June 28, the U.S. Supreme Court overruled Chevron, USA Inc. v. Natural Resources Defense Council. ABC’s general counsel, Littler Mendelson, provided an analysis of the decision:

“Chevron often required courts to defer to federal agencies when those agencies were interpreting statutes they administer. Because of [the June 28] decision, courts will no longer defer. Instead, they will give statutes their ‘best’ interpretation. That means agencies—including labor and employment agencies—will have less leeway to write broad rules. They will instead have to write rules that hew more closely to statutory language. They may also have to defend some existing rules against closer scrutiny in court. And that closer scrutiny could upset some recently adopted or proposed rules, such as rules on overtime, safety inspections, and independent contracting.”

The ABC-led Coalition for a Democratic Workplace issued a statement on the decision:

“The Supreme Court has rightly recognized that Chevron deference gave too much authority to federal agencies. Agencies like the National Labor Relations Board have taken advantage of this decision to interpret their statutes in radical, expansive ways never intended by Congress. Chevron also allowed the Board to engage in incessant flip-flopping on issues with each change of administration, leading to unmanageable uncertainty for the employer community.

“The Court’s new decision will result in more reasonable policies from the executive branch. The judicial system will finally have the ability and responsibility to rein in overreaching agencies like the NLRB to protect the regulated community.”

The U.S. Department of Labor’s Occupational Safety and Health Administration recently issued its Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings proposed rule. OSHA’s proposed rule would apply to all employers conducting outdoor and indoor work in all general industry, construction, maritime and agriculture sectors where OSHA has jurisdiction and require employers to develop programs and implement controls to protect employees from heat hazards. Read ABC’s release on the proposed rule.

Elements of the proposal include the following:

  • Training requirements for supervisors, heat safety coordinators and employees;
  • Developing and implementing a worksite heat injury and illness prevention plan (a written plan must be created for employers with more than 10 employees);
  • An initial heat trigger with a heat index of 80°F (or equivalent wet bulb globe temperature). Requirements for employers include providing drinking water, break areas for indoor and outdoor worksites, acclimatization of new and returning employees, paid rest breaks if needed and more;
  • A high heat trigger with a heat index of 90°F (or equivalent wet bulb globe temperature). Requirements for employers include mandatory rest breaks of 15 minutes at least every two hours (an unpaid meal break may count as a rest break); warning signs for excessively high heat areas and more;
  • Two different options for acclimatization procedures for new and returning workers; and
  • Additional recordkeeping requirements.

OSHA is giving the public 120 days to submit written comments on the proposal after publication in the Federal Register, which will likely occur in the next couple of weeks.

OSHA resources on the proposed rule:


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 protect 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. On Sept. 29, OSHA 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 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.

 

More than 400 construction and business leaders from across the country convened in Washington, D.C., June 25-26 for ABC Legislative Conference 2024.

Speaker of the U.S. House of Representatives Mike Johnson, R-La., Rep. Jim Jordan, R-Ohio, and Jesse Watters, host of Jesse Watters Primetime and co-host of The Five on FOX News, were among the speakers at the popular Legislative Update Breakfast on June 26. Luke Farley of ABC Carolinas member Ellis & Winters LLP, a member of ABC Carolinas, who is the Republican nominee for North Carolina labor commissioner, and Bernie Moreno, a candidate for U.S. Senate in Ohio, also addressed attendees.

Speaker Johnson thanked ABC members for their support dating back to his first run for political office. “You always remember the people who were with you from the beginning,” he said, adding that he believes help is on the way to combat the Biden administration’s efforts to weaponize the justice system and regulatory agencies.

Rep. Jim Jordan shared congressional efforts to fight for rational policies that benefit small business owners and ABC contractor members. “Thank you for what you’ve stood for, which are the right principles, like free enterprise,” said Jordan.

Jesse Watters provided members with a candid perspective on the upcoming presidential debate and 2024 elections. ABC National Chair of the Board of Directors Buddy Henley then presented Watters with the ABC Merit Champion Award as a tribute to his steadfast support of the merit shop.

After the breakfast, ABC contractor members and staff went to Capitol Hill for meetings with their federal lawmakers and staff, where they advocated for inclusive, win-win policies that create a level playing field to bid on taxpayer-funded infrastructure projects. These include the Fair and Open Competition Act; the Employee Rights Act; all-of-the-above workforce development strategies and a new market-driven visa program that addresses our legal immigration workforce needs and disincentivizes illegal immigration.

ABC members and staff also briefed lawmakers on the negative impacts of union-favoring government-mandated project labor agreements; the Inflation Reduction Act; the Protecting the Right to Organize Act; new, controversial apprenticeship requirements; and other burdensome regulations that will exacerbate the construction industry’s skilled labor shortage of more than half a million in 2024 and undermine taxpayer investments in infrastructure.

ABC members and staff met with dozens of lawmakers, including Reps. Sam Graves, R-Mo., Elise Stefanik, R-N.Y., Virginia Foxx, R-N.C., James Comer, R-Ky., and Adam Smith, D-Wash., as well as staff of Sens. John Fetterman and Bob Casey, Democrats of Pennsylvania and staff of Sen. Mark Kelly, D-Ariz.

Finally, the conference concluded with ABC’s Free Enterprise Alliance reception that hosted two U.S. Senate candidates: former Maryland governor Larry Hogan and Ohio businessman Bernie Moreno.

ABC applauded a decision by the U.S. District Court for the Northern District of Texas granting a nationwide preliminary injunction that blocks some provisions in the U.S. Department of Labor’s final rule expanding the Davis-Bacon Act.

Associated General Contractors of America’s lawsuit asserted that the Biden administration lacks the legal authority to expand the law to cover manufacturing facilities miles away from projects and delivery truck drivers spending any amount of time on a jobsite, or to retroactively impose the measure on already-executed contracts, among other things. The court granted AGC’s motion for a nationwide preliminary injunction, temporarily blocking the AGC-challenged provisions.

“The preliminary injunction issued in response to AGC’s federal lawsuit is a victory for the construction industry and the rule of law. It strikes down the Biden administration’s effort to do an end-run around Congress via regulatory action that benefits special interests,” said Ben Brubeck, ABC vice president of regulatory, labor and state affairs.

“ABC’s pending federal lawsuit, filed in East Texas, targets other provisions in the DOL’s extreme overhaul of more than 50 Davis-Bacon Act regulations that undermine commonsense reforms put in place by the Reagan administration. We are hopeful ABC’s lawsuit will also prevail over the Biden administration’s regulatory overreach,” said Brubeck.

On Aug. 8, 2023, the U.S. Department of Labor released a final rule, Updating Davis-Bacon and Related Act Regulations, which makes drastic revisions to the Davis-Bacon Act and Related Acts regulations that apply to federal and federally assisted construction projects funded by taxpayers.

The DOL’s final rule mostly disregards the feedback of ABC contractors, construction industry stakeholders, and thousands of small businesses urging the withdrawal of this unnecessary, costly and burdensome regulation.

On Nov. 7, 2023, ABC and its Southeast Texas chapter filed a complaint in the U.S. District Court for the Eastern District of Texas, challenging the controversial final rule.

Learn more at abc.org/davisbacon.

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.

Find more resources on preventing heat illness at osha.gov/heat, including the OSHA/NIOSH heat safety mobile app, fact sheet, poster, brochure and wallet cards.

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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