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During the last year, the Biden administration pushed to roll back Trump-era initiatives and institute new, pro-union policies that challenge our members’ ability to win work. ABC fought against these proposed rules and regulations affecting merit shop contractors and advocated for open competition and free enterprise.

U.S. Department of Labor

ABC Opposes Davis-Bacon Expansion

On March 18, 2022, the DOL’s Wage and Hour Division issued a proposed rule that would “modernize” the Davis-Bacon Act and related regulations. These outdated regulations require the DOL to set “prevailing wages” for federal and federally assisted construction contracts over $2,000, needlessly raising construction project costs, stifling contractor productivity and discouraging competition from small businesses interested in pursuing these projects.

Despite the rule’s stated purpose, it would instead reverse course by undoing Reagan administration reforms, making union rates more likely to be adopted as prevailing wages, and expanding prevailing wage requirements to cover certain prefabrication work, transportation and flaggers, among other concerns. ABC’s 60-day extension request was denied by the DOL.

ABC surveyed contractor members to gather insights on the potentially harmful impacts of this proposal and filed a 70-page comment letter on May 17. The letter detailed ABC’s opposition and provided feedback on many of the more than 50 significant changes in the proposed rule.

A final rule has not yet been issued. Read more.

ABC Opposes the New Independent Contractor Proposed Rule

In January 2021, the DOL under President Trump issued an independent contractor final rule under the Fair Labor Standards Act, which ABC strongly supported. Soon after, the DOL under President Biden issued a proposed rule to withdraw the final rule and ABC submitted comments opposing it. On March 26, ABC, the ABC Southeast Texas Chapter and the Coalition for Workforce Innovation filed suit against the DOL. In May, the DOL rescinded the final rule.

On March 15, 2022, the U.S. District Court for the Eastern District of Texas dealt a blow to the Biden administration’s efforts to delay and rescind the Trump administration’s 2021 independent contractor final rule in that case. Under a decision applauded by ABC, the ABC-supported rule went into effect as scheduled on March 8, 2021, and remains in effect today.

On Oct. 11, the DOL announced a new proposed rule to rescind and replace the ABC-supported 2021 final rule on independent contractors. ABC expressed its opposition to the proposed rule and submitted   comments on Dec. 13. ABC encouraged members to help push back against the DOL’s harmful proposal by submitting to the DOL a pre-generated comment opposing the proposed rule, which was sent out by ABC’s Action app.

ABC continues to emphasize the importance of independent contractors and warns that any effort by the DOL to undermine that status will likely be challenged by the coalition of which ABC is a part. Read more.

ABC Urges OSHA to Withdraw Its Improved Tracking of Workplace Injuries and Illness Proposal

On June 30, ABC submitted comments on the U.S. Department of Labor’s Occupational Safety and Health Administration’s proposed amendments to its occupational injury and illness recordkeeping regulation and urged the agency to withdraw the harmful rule. Read more.

ABC Opposes OSHA’s Proposal to Include Construction Industry in Final Rule on COVID-19 in Health Care Settings

On April 22, 2022, ABC, as a steering committee member of the Construction Industry Safety Coalition, submitted comments in response to OSHA’s request for additional comment on its “potential provisions or approaches” to a final Occupational Exposure to COVID-19 in Healthcare Settings rule. CISC opposes OSHA’s proposal to expand coverage under any promulgated final rule and include certain construction work in health care settings. ABC also submitted comments on April 22 as a steering committee member of the Coalition for Workplace Safety. The CWS believes unequivocally that OSHA is not permitted to, and must not, issue a permanent standard after having withdrawn the health care emergency temporary standard in December 2021. Read more.

ABC Voices Concerns to OSHA About Powered Industrial Trucks Design Standard Update

On May 17, ABC, as a steering committee member of the Construction Industry Safety Coalition, submitted comments to OSHA voicing compliance and cost concerns on the proposed rule on Powered Industrial Trucks Design Standard Update. While CISC members are not manufacturers of powered industrial trucks, certain types of PITs are frequently used on construction worksites and, thus, CISC members are interested in this proposal. Read more.

ABC Submits Comments Opposing Revision to LM-10 Employer Report Form

On Oct. 13, ABC submitted a comment letter to the DOL’s Office of Management and Labor Standards regarding its proposed revisions to the LM-10 Employer Report form. Employers must file this form with the OLMS to disclose certain payments, expenditures, agreements and arrangements, including the hiring of outside labor relations consultants to help inform their employees regarding union organizing or collective bargaining, known as “persuader activities.” ABC opposed the proposed revision, which would add a checkbox to Form LM-10 requiring employers to report whether they were federal contractors or subcontractors in the prior fiscal year. The proposed revision would also require employers to provide their Unique Entity Identifier and contracting agency or agencies, if applicable. . Read more.

ABC Urges DOL to Withdraw Rule on Nondisplacement of Qualified Workers Under Service Contracts

On Aug. 15, ABC submitted comments to the DOL identifying a number of concerns with its proposed rule on Nondisplacement of Qualified Workers Under Service Contracts, which would implement Executive Order 14055. Read more.

Federal Acquisition Regulatory Council

ABC Calls on President Biden to Withdraw His Inflationary PLA Mandate Policies

On Feb. 4, 2022, President Biden signed Executive Order 14063, Use of Project Labor Agreements for Federal Construction Projects. Once implemented, federal agencies will require that every prime contractor and subcontractor on a federal construction project of $35 million or more performed within the United States to sign a project labor agreement as a condition of winning a contract.

On Aug. 19, 2022 the Federal Acquisition Regulatory Council published a proposed rule requiring federal construction contracts of $35 million or more to be subjected to project labor agreements, in accordance with EO 14063.

ABC slammed the order and proposed rule, saying:

“This anti-competitive and costly executive order rewards well-connected special interests at the expense of hardworking taxpayers and small businesses who benefit from fair and open competition on taxpayer-funded construction projects.”

An ABC-led coalition sent a Feb. 15 letter to the White House and a Feb. 28 letter to Congress highlighting concerns with President Biden’s efforts to require controversial government-mandated PLAs on federal and federally assisted construction contracts.

ABC submitted more than 40 pages of comments to the FAR calling on the Biden administration to withdraw the proposed rule. Read more.

National Labor Relations Board

ABC Urges NLRB to Withdraw Joint Employer Rule

On Sept. 6, the NLRB announced a new joint employer proposed rule, which would rescind and replace the ABC-supported 2020 final rule on Joint Employer Status Under the National Labor Relations Act. ABC expressed disappointment that the NLRB is once again revising its standard for determining joint-employer status, which will cause great confusion among construction contractors, specifically small business owners. On Dec. 7, ABC submitted comments opposing the new NLRB proposal.

ABC joined the CDW in creating a grassroots toolkit to tell the NLRB to abandon its new rule, and later participated in the U.S. Small Business Administration’s Office of Advocacy virtual roundtable on the proposal. The ABC-led CDW and several other organizations successfully advocated for an extension to the rule’s comment period. Read more.

U.S. Treasury Department

ABC Opposition to the Inflation Reduction Act’s Tax Credit

The reckless Inflation Reduction Act (H.R.5376) was signed into law on Aug. 16, 2022. The ABC-opposed legislation provides over $369 billion in tax credits for clean energy construction projects with a bonus tax credit 500% greater than the baseline credit of 6%. The credit is conditioned on requirements that project contractors pay Davis-Bacon prevailing wages and utilize apprentices enrolled in government-registered apprenticeship programs.

ABC believes the bill penalizes employers that believe in fair and open competition and limits opportunities for thousands of construction workers and industry-recognized apprentices. Despite its name, the Penn Wharton Budget Model shows low confidence that the IRA will have any impact on reducing inflation.

According to guidance released by the IRS in November, in order to access full tax credits, developers of qualifying projects beginning on or after Jan. 30, 2023, are required to use apprentices from government-registered apprenticeship programs for at least 12.5% of the total labor hours of the project in 2023, increasing to 15% in 2024 and thereafter. Each contractor and subcontractor employing four or more individuals on a qualifying project must employ one or more apprentices from a government-registered apprenticeship program. In order to receive the full bonus, laborers and mechanics must be paid an hourly prevailing wage rate set by the DOL via the Davis-Bacon Act.

ABC submitted comments opposing the Davis-Bacon and apprenticeship requirements the act imposes. Read more.

U.S. Environmental Protection Agency

ABC Opposes WOTUS Final Rule

On Feb. 7, ABC, as a member of the Waters Advocacy Coalition, filed comments on the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers’ proposed rule to revise the definition of “waters of the United States” applicable to all Clean Water Act programs.

The final rule was issued on Dec. 30, repealing the Trump administration Navigable Waters Protection Rule. On Dec. 30, ABC issued a statement on the final rule, calling it a “significant step back” that will “delay critical infrastructure projects and raise costs for the construction industry.”

ABC Supports Proposed Buy America Waivers

On Aug. 15, ABC submitted comments to the EPA in support of its proposed small projects and de minimis general applicability waivers for Buy America requirements. Read more.

U.S. Department of Transportation

ABC Advocates for Waivers to Buy America Requirements

The U.S. Department of Transportation announced the expiration on Nov. 10 of a general waiver to Buy America requirements imposed by the Infrastructure Investment and Jobs Act. With this expiration, the IIJA’s expanded Buy America requirements are now in effect for most federally funded infrastructure projects.

ABC submitted comments advocating for the waivers, which said that while ABC supports strategies to expand domestic jobs and manufacturing to avoid global supply chain disruptions and capture economic benefits within America, Buy America requirements must be balanced with safeguards against increased costs and delays of infrastructure projects funded by taxpayers. Read more.

ABC Opposes Union Labor Requirements on Electric Vehicle Charging Station Installation

On Aug. 22, ABC submitted comments to the DOT in opposition to union labor requirements included in a proposed rule establishing the National Electric Vehicle Infrastructure Formula Program. Read more.

General Services Administration

ABC Opposes GSA Final Rule Allowing Union Organizing of Contractors on Federal Property

On Nov. 1, ABC submitted comments opposing the GSA’s Sept. 2 final rule to allow unions access to federal property for the purpose of soliciting membership from the employees of federal contractors. Previously, these activities were barred by a general prohibition on soliciting, posting and distributing materials in or on federal property controlled by the GSA. Read more.

U.S. Department of Agriculture

ABC Urges USDA to Withdraw Proposal That Includes New Labor Law Compliance Certifications and Reporting

On Feb. 17, the U.S. Department of Agriculture published a proposed rule to make amendments to the Agriculture Acquisition Regulation, which includes new labor law compliance certifications and reporting provisions that present wide-ranging implications for ABC members that perform work on federal contracts awarded under the AGAR. On March 21, ABC submitted comments urging the USDA to withdraw the proposal. Read more.

Council on Environmental Quality

ABC Opposes National Environmental Policy Act Implementing Regulations Revisions

On April 19, 2022, the CEQ announced its final rule revising the implementation regulations of the National Environmental Policy Act, which will cause needless delays for small businesses and increase costs for taxpayers. ABC supported passage of S.J.Res.55, introduced by Sen. Dan Sullivan, R-Alaska, which would overturn the final rule and preserve ABC-supported reforms implemented in July 2020 under President Donald Trump. The resolution passed the Senate on Aug. 4, 2022, in a 50-47 vote but failed to reach the House floor. Read more.

Learn more about additional ABC comment letters submitted to the Biden administration and federal agencies here.