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On April 10, the U.S. Senate passed H.J. Res 98, the Joint Employer Congressional Review Act resolution of disapproval, in a 50-48 vote. ABC sent a key vote letter to senators ahead of the vote urging them to support the resolution, which would nullify the ABC-opposed National Labor Relations Board’s 2023 joint employer final rule. The Senate’s action comes two months after the U.S. House of Representatives passed H.J. Res 98 in a 206-177 vote, with eight Democrats supporting. Although President Joe Biden has vowed to veto the resolution, passage in the House and Senate sends a strong message to the administration as they continue to implement harmful labor policies.
On March 8, the U.S. District Court for the Eastern District of Texas vacated the NLRB’s 2023 joint employer final rule and the Board’s rescission of the ABC-supported 2020 joint employer final rule. Under the court’s decision, the 2020 final rule, which provides clear criteria for companies to apply when determining their joint employer status, remains in effect today.
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. On Feb. 22, 2024, the judge in the case delayed the final rule’s effective date from Feb. 26 to March 11. The 2023 final rule rescinded the ABC-supported 2020 NLRB joint employer final rule, which provided clear criteria for companies to apply when determining status.
The 2023 final rule was scheduled to go into effect on March 11. According to an NLRB press release, “The Agency is reviewing the decision and actively considering next steps in this case.”
To learn more about the federal court’s decision, read ABC general counsel Littler Mendelson’s analysis. Also, read ABC’s statement applauding the decision.
On March 21, ABC wrote a letter in support of H.R. 7784, the Start Applying Labor Transparency Act or SALT Act (introduced by Rep. Burgess Owens, R-Utah), which would amend the Labor-Management Reporting and Disclosure Act of 1959. Its purpose is to clarify that labor organizations and their consultants must report when they engage in a coercive tactic known as “salting”—a process where unions send professionally trained organizers into merit shop workplaces under the guise of seeking employment.
ABC wrote, “The SALT Act provides workers with transparency and, at the same time, protects small businesses from the toxic work environment salts often seek to create. This saves businesses significant time, money and resources that would enable them to hire more employees, invest in equipment and secure more work to grow their companies and provide additional jobs in the community.”
According to Rep. Owens, the SALT Act enhances the Labor-Management Reporting and Disclosure Act of 1959 by requiring labor organizations and individuals to file reports on payments, loans, agreements or arrangements made to influence employees’ organizational and bargaining rights, as well as receipts and disbursements related to labor relations services.
“Imagine a scenario where an employee, without the knowledge of their colleagues and employer, is receiving compensation from a union while advocating for its interests within the workplace,” said Rep. Owens in a press release introducing the legislation. “This deception not only breeds suspicion but also erodes the very foundation of trust and transparency between employers and employees. The SALT Act seeks to address this issue by requiring union salts to disclose their affiliation with the U.S. Department of Labor, ensuring transparency and fairness in the workplace.”
ABC applauds Rep. Owens for introducing the SALT Act and has urged members of the U.S. House Committee on Education and the Workforce to support the legislation and further efforts to promote transparency in the workplace and counter the detrimental effects of union salting.
The U.S. Environmental Protection Agency recently launched a new website, epa.gov/permits, with the goal of providing a centralized source of information about federal environmental permitting programs under the EPA’s jurisdiction.
The website includes information on enforcement of Clean Water Act permitting requirements under the recently updated definition of “waters of the United States,” among numerous other permitting programs.
Additionally, the U.S. Army Corps of Engineers and EPA have recently published a number of joint policy memos regarding the interpretation of WOTUS, available on the Army Corps’ website under the ‘EPA-Army Joint Policy Memos’ section.
On April 1, ABC submitted comments opposing the Federal Acquisition Regulatory Council’s 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.
ABC’s comments highlighted several concerning issues regarding the proposed rule, including:
ABC will continue to monitor this regulation and provide additional information as the FAR Council moves towards a final rule.
On March 29, the U.S. Department of Labor’s Occupational Safety and Health Administration announced its Worker Walkaround Representative Designation Process final rule, which allows employees to choose a third-party representative, such as an outside union representative or community organizer, to accompany an OSHA safety inspector into nonunion workplaces during site inspections. This final rule is effective on May 31, 2024. ABC will offer a webinar on Tuesday, April 9 at 2 p.m. ET about the final rule. Register now!
ABC issued a press release opposing the final rule, saying:
“Now, construction employees and employers could face serious safety concerns because the final rule has the potential to allow anyone on a jobsite,” said Greg Sizemore, ABC vice president of health, safety, environment and workforce development. “There simply is no business case for this final rule and no benefit during a compliance inspection.”
“By allowing outside union agents access to nonunion employers’ private property, OSHA is injecting itself into labor-management disputes and casting doubt on its status as a neutral enforcer of the law,” said Sizemore. “This final rule negatively impacts the rights of employers while simultaneously ignoring the rights of the majority of employees who have not authorized a union to represent them. OSHA’s rule also poses unnecessary risk to the individual joining the inspection and others on the jobsite if the authorized person is not trained to safely walk a construction jobsite. The rule does not include any requirement that the authorized person be equipped or conduct themselves to the same standards as OSHA safety inspectors. Further, the final rule fails to answer who is legally responsible if the third party gets injured during the inspection or harms someone else.”
ABC is currently considering all options in response to this rule.
OSHA Resources on the final rule:
On Nov. 13, ABC submitted comments urging the DOL to withdraw its Worker Walkaround Representative Designation Process proposed rule. ABC also signed on to comments submitted by the Coalition for Workplace Safety and Construction Industry Safety Coalition.
ABC will continue to monitor this issue and provide updates as they become available.
On March 22, Sen. Bob Casey, D-Pa., led a group of Democratic senators in a letter to U.S. Department of the Treasury Secretary Janet Yellen, urging Treasury to impose additional burdensome labor mandates and compliance regulations in the agency’s implementation of the Inflation Reduction Act.
The ABC-opposed IRA provides over $270 billion in tax credits for the construction of solar, wind, hydrogen, carbon sequestration, electric vehicle charging stations and other clean energy projects. Unfortunately, these tax credits are conditioned on compliance with restrictive prevailing wage and government-registered apprenticeship program mandates.
On Aug. 29, 2023, Treasury issued a proposed rule and FAQs to provide additional guidance regarding the IRA’s prevailing wage and apprenticeship requirements. On Oct. 30, ABC submitted comments to the IRS and issued a Oct. 31 press release, outlining the cumbersome and unclear nature of the regulations and provisions that inhibit fair and open competition by unfairly favoring unionized contractors. A final rule is expected by the end of 2024, but taxpayers and contractors may rely on the proposed rule for compliance until the final rule is issued.
The senators’ recommendations regarding the regulations would exacerbate these concerns if implemented, with the letter’s suggestions that they would:
ABC will continue to advocate for Treasury to instead promote policies that welcome all qualified contractors on clean energy projects. Additional resources and information are available at abc.org/ira.
The U.S. House of Representatives recently passed the Creating Confidence in Clean Water Permitting Act in a 213-205 vote. H.R. 7023, sponsored by Rep. David Rouzer, R-N.C., includes provisions from five stand-alone ABC-supported bills that passed out of the House Committee on Transportation and Infrastructure on Jan. 31: The Nationwide Permitting Improvement Act, the Reducing Permitting Uncertainty Act, the Judicial Review Timeline Clarity Act, the Water Quality Criteria Development and Transparency Act and the Confidence in Clean Water Permits Act. The bill will go a long way toward eliminating unnecessary delays that cause budget overruns in construction.
ABC sent a letter in support of H.R. 7023 to all House members, saying it represents the best and most comprehensive federal regulatory permitting and project review reform legislation on the table this Congress.
On March 25, the U.S. House of Representatives Committee on Education and the Workforce passed the ABC-supported H.J. Res. 116, the Congressional Review Act resolution to nullify the U.S. Department of Labor’s independent contractor final rule, in a 21-13 vote with all Republicans present voting in support.
Ahead of the markup, ABC sent a letter in support of the resolution and urged committee members to report it for a full House vote. “The proposal creates an ambiguous and difficult-to-interpret standard under which employers will be forced to guess which factors will be more important in the determination and how to analyze the facts of their contractual relationships under multiple factors,” the letter noted. “This confusion will lead to more litigation, as employers and workers alike will not understand who qualifies as independent contractors.”
On Jan. 9, the DOL 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. On March 5, ABC, its Southeast Texas chapter, the Coalition for Workforce Innovation, the Financial Services Institute, the American Trucking Associations, the U.S. Chamber of Commerce, the National Retail Federation and the National Federation of Independent Business filed an amended complaint in the U.S. District Court for the Eastern District of Texas arguing that the U.S. Department of Labor’s Employee or Independent Contractor Classification Under the Fair Labor Standards Act final rule is unlawful and a violation of the Administrative Procedure Act. The district court will review the complaint and response from the U.S. Department of Justice. The final rule went into effect on March 11.
Learn more about the 2024 final rule. Also, watch the ABC members-only archived webinar in the Academy, “Learn What the DOL's Final Independent Contractor Rule Means for ABC Members.”
On March 18, ABC submitted 45 pages of comments on the U.S. Department of Labor’s proposed rule making significant and controversial revisions to the National Apprenticeship System, 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:
“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.
Additionally, Sen. John Barrasso, R-Wyo., and Rep. Virgina Foxx, R-N.C., along with U.S. Senate and U.S. House of Representatives colleagues, sent letters to the DOL urging the Biden administration to withdraw its controversial proposed changes to the National Apprenticeship System.
“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:
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 March 8, the U.S. District Court for the Eastern District of Texas vacated the National Labor Relations Board’s 2023 Joint Employer Final Rule and the Board’s rescission of the ABC-supported 2020 Joint Employer Final Rule. Under the court’s decision, the 2020 final rule, which provides clear criteria for companies to apply when determining their joint employer status, remains in effect today. ABC opposed the 2023 final rule, which was scheduled to go into effect on March 11. According to a NLRB press release, “The Agency is reviewing the decision and actively considering next steps in this case.” To learn more about the federal court’s decision, read ABC general counsel’s Littler Mendelson’s analysis.
Following the decision, ABC issued a press release, stating:
“We are pleased the court has blocked the NLRB’s radical and overbroad joint employer standard, which would have disrupted long-established, efficient operational processes that are followed by construction service providers who work together to build America,” said Ben Brubeck, ABC vice president of regulatory, labor and state affairs. “Under the 2023 final rule, contractors would be vulnerable to increased liability and risk, making them less likely to hire subcontractors, most of which are small businesses. The rule clearly would have had a harmful effect on a significant segment of the construction industry: small businesses.
“By reinstating the 2020 final rule, contractors will be better able to work and coordinate with multiple employers without fear of being unexpectedly and unfairly found to be joint employers,” said Brubeck.
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. On Feb. 22, 2024, the judge in the case delayed the final rule’s effective date from Feb. 26 to March 11. The 2023 final rule rescinded the ABC-supported 2020 NLRB joint employer final rule.
Please continue to monitor Newsline for updates on the lawsuit.