Status

The Inflation Reduction Act was signed into law on Aug. 16, 2022, and 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.

A new policy in Subtitle D-Energy Security of the IRA grants developers/taxpayers a bonus tax credit 500% greater than a baseline tax credit of 6%, but this is conditioned on requirements that project contractors pay Davis-Bacon prevailing wages and utilize apprentices enrolled in government-registered apprenticeship programs. This new policy is an unprecedented expansion of Davis-Bacon and government-registered apprenticeship requirements/enticements onto private construction projects via the federal tax code.

On Nov. 30, Treasury and the IRS released guidance regarding tax credits for private clean energy projects funded by the Inflation Reduction Act conditioned on compliance with prevailing wage and government-registered apprenticeship requirements. Treasury and the IRS also released FAQs to provide additional information on prevailing wage and apprenticeship requirements.

The prevailing wage and apprenticeship provisions outlined in the guidance will now apply to projects that begin construction on or after Jan. 30, 2023––60 days after the guidance’s publication in the Federal Register. Treasury indicated it “plans to issue additional proposed regulations with respect to these requirements in the coming months.”

In order to access full tax credits, developers of qualifying projects are required to use apprentices from government-registered apprenticeship programs for at least 15% of the total labor hours of the project in 2024, which phases in at 12.5% for construction work in 2023 and increases 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.

Developers seeking the full bonus credit must require contractors and subcontractors to pay laborers and mechanics employed for the construction and alteration or repair of a qualifying project an hourly prevailing wage rate set by the DOL via the Davis-Bacon Act.

The guidance does not provide clarity on whether Treasury and the IRS or the DOL will be enforcing compliance and the additional regulatory red tape and practices that typically accompany regulations related to the DBA, though this may be clarified in future regulations and guidance documents.

Construction trade unions and their allies have approached clean energy developers and contractors and insisted a project labor agreement is required to qualify for the full tax credits from Treasury. No such provision exists in the IRA or in the Treasury guidance or FAQs. A PLA is not needed to ensure that contractors meet the IRA’s prevailing wage and government-registered apprenticeship program requirements.

On Aug. 29, the U.S. Treasury Department’s Internal Revenue Service released a proposed rule and FAQs on provisions of the ABC-opposed Inflation Reduction Act, which will affect the developers, contractors and workers that are building clean energy projects eligible for more than $270 billion in federal tax credits. To learn more details about the proposed rule, see ABC’s Newsline article.

The Treasury’s Notice of Proposed Rulemaking, Increased Credit or Deduction Amounts for Satisfying Certain Prevailing Wage and Apprenticeship Requirements, proposes regulations clarifying the applicability of tax credits for the construction of private clean energy projects funded by the IRA––including solar, wind, hydrogen, carbon sequestration, electric vehicle charging stations and more––conditioned on compliance with controversial prevailing wage and government-registered apprenticeship requirements.

According to a survey of ABC contractor members published Oct. 24, 98% of respondents stated that prevailing wage and government-registered apprenticeship policies imposed by the Inflation Reduction Act will make them less likely to bid on clean energy projects. 

On Oct. 30, ABC submitted comments to the IRS and issued a Oct. 31 press release, calling on the Biden administration to clarify prevailing wage and apprenticeship requirements and eliminate unnecessary provisions that depart from the letter of the law, including the proposed rule’s incentivization of project labor agreements that restrict competition and unfairly favor unions.

A final rule is not expected until December 2024. The proposed rule states that taxpayers seeking to comply with the IRA may rely on these regulations until a final rule is published.

Desired Outcome

ABC will continue to advocate for fixes to the restrictive labor policies enacted by the IRA, and the unnecessary cost increases they will cause for contractors and developers.

In the meantime, ABC will continue to provide resources on IRA’s provisions to assist members in maximizing the potential opportunities presented by the IRA while navigating the unique difficulties posed by its expansion of Davis-Bacon and GRAP requirements into the private sector.

Explore ABC’s IRA webpage today at abc.org/ira. If you have additional questions regarding the IRA, please contact [email protected].

Status

On March 8, 2024, in a victory for ABC, a federal judge in the U.S. District Court for the Eastern District of Texas vacated the 2023 National Labor Relations Board’s joint employer rule and the Board’s rescission of the preexisting ABC-supported 2020 rule. This means the 2020 NLRB final rule remains in effect, which provides clear criteria for companies to apply when determining joint-employer status under the National Labor Relations Act. The NLRB filed a notice of appeal on May 7, 2024, in the U.S. Court of Appeals for the Fifth Circuit.

Shortly after the court’s decision, 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 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 vetoed the resolution, passage in the House and Senate sends a strong message to the administration as they continue to implement harmful labor policies. Read ABC’s statement criticizing President Biden’s veto.

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 NLRA and for acting arbitrarily and capriciously in violation of the Administrative Procedure Act. The 2023 final rule rescinded the ABC-supported 2020 NLRB joint employer final rule.

Prior to the issuance of the joint employer final rule, Sen. Roger Marshall, R-Kan., and Rep. James Comer, R-Ky., introduced the Save Local Business Act (H.R. 2826/S. 1261) on April 25, 2023. This ABC-supported the legislation, which would make clear that an employer may be considered a joint employer in relation to an employee only if the employer directly, actually and immediately exercises significant control over the essential terms and conditions of employment.

Desired Outcome

ABC is pleased the court blocked the NLRB’s radical and overbroad joint employer standard, which would have disrupted long-established, efficient operational processes followed by construction service providers who work together to build America.

Under the 2023 final rule, contractors would be vulnerable to increased liability and risk, making them less likely to hire subcontractors, most of whom 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.

Status

Since President Joe Biden took office in January 2021, he has taken a series of controversial and unprecedented actions to reshape the leadership of the National Labor Relations Board. At the direction of this leadership, the Board has issued several radical rulemakings, memoranda and decisions that threaten businesses and the rights of workers. In response, ABC has filed legal challenges and supported legislation to counter the aggressive direction the NLRB has taken.

The reshaping of the NLRB began on President Biden’s first day in office when he fired incumbent NLRB General Counsel Peter Robb, a move without precedent since the establishment of the Office of the General Counsel in 1947. This action was followed by President Biden’s nomination of Jennifer Abruzzo to serve as general counsel of the NLRB in July 2021. Abruzzo had a long history of pro-union policies and work experience, and she had served on President Biden’s transition team for the NLRB, which recommended Biden terminate Robb. In response to her nomination, the ABC-led Coalition for a Democratic Workplace wrote the U.S. Senate urging they reject her nomination. Abruzzo was confirmed to serve as general counsel only with a tie-breaking vote by Vice President Kamala Harris. Since her confirmation, Abruzzo has worked to overturn numerous and significant NLRB precedent and dramatically expand the NLRA’s interpretation and reach.

Democrats have held a majority on the NLRB since August 2021. Together, this Democrat-led NLRB, with General Counsel Abruzzo, has advanced radical changes to federal labor law and overturned many of the commonsense policies adopted during the Trump administration.

Chair Lauren McFerran’s current term expires in December 2024. However, President Biden renominated McFerran on May 23 to serve another five year term as a member of the NLRB. If McFerran is successfully confirmed, there will be a Democratic majority on the Board through August 2026, regardless of who wins the presidency in 2024.

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Decisions

• Secret Ballot Elections: In August 2023, the NLRB issued its decision in Cemex, rewriting union representation election rules to make card check the default method for determining worker representation. Card check is a system in which workers choose union representation via signed authorization cards with no guarantee of privacy, rather than via secret ballots in an NLRB-supervised election. Card check is notoriously flawed, as the U.S. Supreme Court, Congress and others have argued.
  
  The Cemex decision exposes workers to union coercion, intimidation and lies while violating a worker’s right to a private ballot. The NLRB advanced this significant policy change without accepting public input, specifically rejecting the ABC-led Coalition for a Democratic Workplace’s request to allow for amicus briefs.
  
  The Cemex decision was appealed to the U.S. Court of Appeals for the Ninth Circuit. ABC joined CDW and 14 other employer organizations in filing an amicus brief in February 2024.


• Right To Challenge Union Election Results: In ArrMaz Products, General Counsel Abruzzo called on the Board to make it an unfair labor practice for employers to challenge union election results by refusing to bargain with a union, despite this right being explicitly guaranteed by the NLRA. The NLRB’s general counsel also called for employees to be compensated for the time the employer refuses to bargain. In conformity with NLRB General Counsel Abruzzo, the NLRB ruled that refusing to bargain with a union is an unfair labor practice. However, the NLRB severed Abruzzo’s call for employees to be compensated for the time the employer refused to bargain, allowing it to issue a decision on the case while leaving the remedy’s decision up for future consideration.
  
  The ABC-led CDW filed a motion for the NLRB to accept its amicus brief in the case, in which CDW asserted that Abruzzo’s proposed remedy would “chill the rights of every employer seeking to petition the courts to review the Board’s certification of a union.”
  
  The Board’s decision in the case is undergoing consideration by the U.S. Court of Appeals for the Eleventh Circuit.


• Employee Handbook Provisions: In August 2023, the NLRB issued its decision in Stericycle, overturning the Trump-era NLRB’s 2017 Boeing decision. In Stericycle, the Board adopted a strict new standard for determining if an employer’s workplace rules violate the NLRA and workers’ right to collectively bargain.
  
  ABC joined CDW in filing an amicus brief in the case calling on the Board to reaffirm the Boeing standard, which required the Board to consider the impact of a workplace rule on the employees’ rights as well as the legitimate business justification for that rule.


• Employee Classification: In June 2023, the NLRB issued its decision in The Atlanta Opera, which narrowed the independent contractor standard under the NLRA, making it nearly impossible for workers to qualify as independent contractors. The standard severely undervalues the significance of a worker’s entrepreneurial opportunity for economic gain when determining the worker’s classification.
  
  ABC joined CDW in filing an amicus brief in the case, highlighting that federal courts have already rejected the NLRB’s standard on two separate occasions.

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Rulemakings

• Joint Employer: In March 2024, in a victory for ABC, a federal judge in the U.S. District Court for the Eastern District of Texas vacated the Board’s 2023 joint employer final rule and the Board’s rescission of the preexisting ABC-supported 2020 rule. This means the 2020 NLRB final rule, which provides clear criteria for companies to apply when determining joint-employer status under the NLRA, remains in effect. The Board has appealed the decision to the U.S. Court of Appeals for the Fifth Circuit.
  
  ABC is pleased the court 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. See ABC’s statement in support of the decision.
  
  Under the 2023 final rule, contractors would have been 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.
  
  In November 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 NLRA and for acting arbitrarily and capriciously in violation of the Administrative Procedure Act.
  
  Moreover, on April 10, 2024, Congress passed a Congressional Review Act resolution disapproving and nullifying the NLRB’s joint employer rulemaking. ABC sent a key vote letter to senators urging them to support the resolution. Unfortunately, President Biden vetoed the resolution, and the House’s 214-191 vote to override the veto fell short of garnering the two-thirds majority required to pass the measure. However, the resolution’s passage in the House and Senate sends a strong message to the administration as they continue to implement harmful labor policies.


• “Ambush” Election Rule: Despite years of litigation, the Biden administration’s NLRB revived a controversial policy from the Obama era in the form of its representation-case procedures final rule. The direct final rule, issued without notice or the opportunity to comment, essentially restores provisions of the 2014 “ambush” election rule and rescinds the remaining ABC-supported provisions of a 2019 final rule that largely tried to unwind the 2014 rulemaking. The rule applies to representation petitions filed on or after Dec. 26, 2023. Under the rule, employers will have less time to respond to representation petitions.
  
  The Board’s efforts to again reduce the amount of time between when a union files a representation petition and an election takes place imposes unnecessary urgency on employers, leaving them susceptible to violations of their due process rights and deprives employees of the time needed to become fully informed before deciding whether or not to unionize. Ultimately, the rule infringes on the rights of employers and employees to a fair pre-election process and will have a particularly adverse impact on small construction firms, which typically do not employ legal counsel.
  
  To learn about the changes included in the 2023 final rule, see ABC’s Newsline article, NLRB comparison chart of prior and new representation case procedures, NLRB fact sheet, NLRB press release and ABC general counsel Littler Mendelson’s analysis of the final rule.


• Representation Election Procedures: In November 2022, the NLRB issued another proposed rulemaking altering the representation-case procedures, which addresses election-blocking charges, voluntary recognition and construction industry bargaining relationships. The proposal would rescind the ABC-supported 2020 NLRB final rule, which was intended to “better protect employees’ statutory right of free choice on questions concerning representation.”
  
  In February 2023, ABC submitted comments in opposition to the proposed rule. ABC also signed on to the CDW’s comment letter along with 12 other employer organizations. The CDW argued that the proposed rulemaking would “negatively affect the Board’s representation case jurisprudence, undermine the agency’s statutory goals and reputation, diminish employee free choice and upset the balance of countervailing interests.”

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Memos

• Captive Audience Meetings: In April 2022, General Counsel Abruzzo issued a memo to all NLRB field offices declaring that mandatory meetings held by employers to discuss unionization with workers violates a worker’s “right to not listen to such speech.”
  
  This memo essentially eliminates employers’ free speech rights during union organizing campaigns in the workplace as well as workers’ right to be fully informed when considering union representation. The NLRB has protected employer speech rights for 74 years, and the Supreme Court has repeatedly recognized these meetings as an extension of employers’ First Amendment rights.


• Noncompetes: In May 2023, NLRB General Counsel Abruzzo issued a memo to all NLRB field offices declaring that overbroad noncompete agreements were unlawful except in cases where their purpose is to restrict managerial or ownership interests in a competing business. This decision may deter employers from investing in employee advancement.

 

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Desired Outcome

The NLRB was intended to serve as a neutral arbiter of federal labor law. ABC supports balanced policies that reflect the NLRB’s original mission to fairly interpret and enforce the NLRA. Unfortunately, the NLRB under the Biden administration has decidedly abandoned its role and is now solely focused on expanding and reinterpreting the law to favor unions at the expense of workers and employers alike.

Status

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 will undo the ABC-supported provisions of the 2019 final rule promulgated under the Trump administration and reprise the 2016 Obama-era rule. The final rule becomes effective 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 Injury Tracking Application.

In June 2022, ABC submitted comments urging OSHA to withdraw the proposed rule.

Desired Outcome

ABC urged OSHA to withdraw the proposed rule. ABC has serious concerns that the Biden DOL final rule  will increase the number of contractors subject to electronic safety data submission requirements and carry high risks for exposing sensitive and private employee information as well as confidential business information by posting parts of the submissions on a public website. Public disclosure of this information could cause reputational harm based on misleading information on the safety and health efforts of employers. These records could easily be misconstrued, and improper conclusions or assumptions could be made about an employer.

Status

By the end of this year, the DOL’s Occupational Safety and Health Administration is expected to issue a proposed rule on Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings, which would implement regulations to protect workers from hazardous heat.

In September 2023, the Small Business Advocacy Review Panel hosted video conferences to gather input from small entity representatives on the potential rulemaking, and an ABC member participated as a SER during one of the conferences. In December, ABC submitted comments as a steering committee member of the Construction Industry Safety Coalition and the Coalition for Workplace Safety to OSHA following its review of the SBAR Panel materials and the final report, which was issued on Nov. 3.

CISC’s comments state, “The construction environment is inherently fluid and CISC has significant concerns with any regulatory approach that imposes prescriptive, complicated requirements on construction industry employers.”

“The CISC urges OSHA to focus its regulatory approach on the key concepts of ‘Water, Rest and Shade’ and provide construction employers the necessary flexibility to make such a standard effective. For the same reasons, the CISC reiterates its invitation for OSHA to consider a separate regulatory approach for the construction industry, as OSHA has done in other rulemakings.” 

CWS’ comments state: “The CWS supports recommendations expressed in the Panel Report, and in other comments submitted to the agency, recognizing that flexibility, versus a ‘one-size-fits-all’ standard, is necessary for employers to prevent or mitigate heat-related injuries and illnesses in their workplaces the most effectively.” Read CWS’ press release.

OSHA issued new resources to protect workers from the effects of heat in 2023. 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 January 2022, ABC, as a steering committee member of CISC, submitted comments in response to the Advance Notice of Proposed Rulemaking on Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings, issued by OSHA on October 27, 2021. The ANPRM requested information on how to implement regulations to prevent workers from hazardous heat.

Desired Outcome

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, shade.” 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.

Status

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 U.S. Department of Labor’s controversial final rule, Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales, and Computer Employees, which will change overtime regulations under the Fair Labor Standards Act. Read ABC’s news release announcing the lawsuit.

Issued on April 23, DOL’s new 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, salary thresholds will update every three years starting on July 1, 2027. ABC issued a news release opposing the rule.

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 massive 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.

DOL resources on the final rule:

• Frequently Asked Questions
• Chart of All the Earnings Thresholds for Executive, Administrative, and Professional Employees
• Small Entity Compliance Guide
• Overtime Final Rule Website
• Press Release

Additionally, read Littler Mendelson’s analysis of the overtime final rule.

Desired Outcome

ABC called on the DOL to withdraw the overtime rule, which is particularly harmful to small businesses.The DOL should recognize that the construction industry is currently up against increased geopolitical uncertainty, high materials prices, inflationary pressures and workforce shortages.

Status

President Joe Biden continues to back and support provisions in the ABC-opposed Protecting the Right to Organize Act (H.R.20/S.567), which would violate workers’ free choice and privacy rights, force unions on employees who have voted against such representation, cost millions of American jobs and threaten vital supply chains.

On Feb. 28, 2023, congressional Democrats reintroduced the PRO Act in the 118th Congress. On June 20, ABC and the ABC-led Coalition for a Democratic Workplace sent opposition letters to the Senate Committee on Health, Education, Labor, and Pensions ahead of its June 21 markup. The bill passed out of committee on an 11-10 party line vote but is unlikely to be voted on by the full Senate and will not receive a vote in the Republican controlled House. However, President Biden and his administration are attempting to use agency rules and regulations to enact harmful provisions of the PRO Act without Congressional approval.

Desired Outcome

The PRO Act is a wish list of radical labor policies that would infringe on workers and employers’ rights, diminish opportunities for entrepreneurs and small business owners and devastate the economy.

ABC and the CDW are leading the fight against the PRO Act, engaging with key audiences to stop this attempt to implement radical labor policies. Visit freeenterprisealliance.org/proact to learn more and take action.