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As the presenting sponsor of ABC's 34th annual Excellence in Construction® Awards, the ABC Insurance Trust embraces merit shop principles to highlight the pivotal role that healthy competition plays in improving the construction industry. The Trust’s innovative benefits enhance workforce well-being and make high-performing ABC member companies more appealing to top talent in a competitive market while delivering significant savings on healthcare and retirement plans.

There is a critical lack of competition and transparency in the healthcare arena. The current system relies on ambiguous pricing and third parties with misaligned incentives, which affects how much ABC members and their employees pay for healthcare, leaving members at the mercy of the same organizations year after year.

Employers and employees blindly accept bills from hospitals and insurance carriers without actively knowing the actual cost of the service or, more importantly, the quality of the provider. This conundrum also extends to prescription drugs, where exorbitant prices persist despite more reasonable alternatives worldwide.

The ABC Insurance Trust works with members to introduce healthy competition into the employee benefits evaluation process to eliminate this healthcare dysfunction in an industry deeply affected by rising healthcare costs. Through its newly launched healthcare captive, the Construction Healthcare Alliance, the Trust brings contractors from across the country together to leverage strength in numbers and initiate real change.

Learn more about enhanced benefits tailored to meet every member’s unique needs at abcinsurancetrust.org.

On Feb. 26, ABC joined the U.S. Chamber of Commerce and eight other groups in submitting comments to the U.S. Department of Defense on its Cybersecurity Maturity Model Certification (CMMC) Program proposed rule, which would require federal contractors and subcontractors competing for DOD contracts to demonstrate continued compliance with a range of cybersecurity measures in order to maintain eligibility for performing and winning new federal awards.

The organizations called for more clarity (e.g., definitions), expressed concerns about costs and asked questions regarding capacity and other process and organizational issues.

The comments urged flexible implementation of CMMC program requirements. The comment letter pointed out that,According to the proposed rule, the defense industrial base, or DIB, consists of 221,286 entities. Of these, the DOD expects that 76,598 will be subject to a Level 2 Certification Assessment, of which 56,789 (74%) are small businesses. The complex CMMC Program would apply to all these entities. Our associations believe that it is essential that DOD builds in flexibility in the administration, application, oversight, and enforcement of the proposed rule. Such flexibility would benefit DOD and the thousands of businesses subject to the CMMC Program. The circumstances of every business differ. The CMMC Program contemplates applying one complex rule, with even more complex accompanying documentation to all these businesses.”

The letter further discussed avoiding harm to small defense contractors. The letter states,Our associations believe that the proposed rule would discourage many small and disadvantaged businesses from bidding on DOD construction projects. We are concerned about the likely adverse economic impact of the CMMC Program on promoting (sub)contracting between small businesses in the construction industry and DOD.”

In addition, it states, “The decline in small business participation in federal contracting directly correlates with increasing federal regulatory burdens. Surveys of ABC’s membership have found that small business contractors often choose to bid on private sector and state or local government contracts that feature more regulatory clarity and less regulatory burdens, which mitigate expenses related to compliance.”

Background on the Proposed Rule

On Dec. 26, 2023, the DOD published a proposed rule that would require federal contractors and subcontractors competing for DOD contracts to demonstrate continued compliance with a range of cybersecurity measures in order to maintain eligibility for performing and winning new federal awards.

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 DIB could be affected by the rule.

On Jan. 30, 2024, ABC urged the DOD to extend the current 60-day comment period deadline of Feb. 26 in order to provide adequate time for ABC to analyze the substantial proposed rule, solicit member feedback and provide meaningful input on the proposal. ABC argued a 30-day extension from the current deadline will be vital to ensure that the DOD can receive thorough input from all stakeholders affected by this proposed rule.

On Feb. 8, Inside Cybersecurity reported that the DOD “turned down a request from industry groups to extend the comment period” for 60 days. Thereafter, on Feb. 9, ABC joined a coalition letter urging the DOD to reconsider its publicly reported decision to not extend the comment period and to instead extend it either 30 or 45 days—a middle-ground approach. The DOD did not issue a response.

Continue to monitor Newsline for updates.

As part of a legal challenge against the National Labor Relations Board’s joint employer final rule, a federal judge in Texas delayed the final rule’s effective date from Feb. 26 to March 11. The new standard will only be applied to cases filed after the rule becomes effective.

On Nov. 9, 2023, 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.

The NLRB’s joint employer final rule will disrupt long-established, efficient operational processes that are 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. Read ABC’s press release about the final rule.

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

Resources:

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 11:59 p.m. ET on Feb. 22.

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