Category: News Line

On Sept. 15, the Wage and Hour Division of the U.S. Department of Labor (DOL) published a notice in the Federal Register that the minimum wage for federal contractors will increase to $10.35 per hour beginning Jan. 1, 2018. The increase comes as result of the Obama DOL’s final rule implementing Executive Order 13658, Establishing a Minimum Wage for Contractors (Feb. 12, 2014), which raised the hourly minimum wage paid by contractors to workers performing work on covered Federal contracts to $10.10, and annually thereafter, an amount determined by the Secretary of Labor in accordance with the methodology set forth in the Order.

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Enforcement of the Occupational Safety and Health Administration’s (OSHA) silica standard as it applies to the construction industry will begin on Sept. 23. On Sept. 20, the U.S. Department of Labor’s Acting Deputy Assistant Secretary Thomas Galassi issued a memorandum on enforcement policy for the construction industry.  The memo to regional administrators states:

During the first 30 days of enforcement, OSHA will carefully evaluate good faith efforts taken by employers in their attempts to meet the new construction silica standard. OSHA will render compliance assistance and outreach to assure that covered employers are fully and properly complying with its requirements. Given the novelty of the Table 1 approach, OSHA will pay particular attention to assisting employers in fully and properly implementing the controls in the table. OSHA will assist employers who are making good faith efforts to meet the new requirements to assure understanding and compliance. 
 
If, upon inspection, it appears an employer is not making any efforts to comply, OSHA’s inspection will not only include collection of exposure air monitoring performed in accordance with Agency procedures, but those employers may also be considered for citation. Any proposed citations related to inspections conducted in this time period will require National Office review.
 
To ensure effective implementation of the new standard, OSHA has developed interim inspection and citation guidance to be released prior to termination of this memorandum. The compliance directive will be finalized thereafter.

Silica remains a top priority for ABC National and we continue to have conservations with the U.S. Department of Labor. We will update you with any new developments.

Litigation Update:
ABC, along with a coalition of construction groups, is litigating the final rule. The case is in the U.S. Appeals Court for the D.C. Circuit. Briefing in the case is completed and oral arguments are scheduled for next week.

Resources on the silica final rule:

Background on the Silica Final Rule: 
Issued on March 25, 2016, OSHA’s Occupational Exposure to Respirable Crystalline Silica final rule lowers the permissible exposure limit from the current standard of 250 micrograms per cubic meter of air to 50 micrograms per cubic meter of air, averaged over an eight-hour day, and an action level of 25 micrograms per cubic meter of air. In addition, the final rule requires contractors to follow several ancillary provisions, such as housekeeping and written exposure plans. Crystalline silica is ubiquitous on construction sites by virtue of its presence in many commonly used construction materials and products such as concrete, bricks, stone, asphalt, tile and countertops.
 
On April 6, 2017, OSHA delayed enforcement of the silica standard as it applies to the construction industry from June 23, 2017, to Sept. 23, 2017. On March 10, 2017, ABC, as a member of the Construction Industry Safety Coalition (CISC), sent a letter to the acting secretary of Labor requesting that the department delay enforcement of OSHA’s final silica rule by one year.
 
On April 4, 2016, ABC along with several national construction organizations filed a lawsuit against the final silica rule in the U.S. Court of Appeals for the D.C. Circuit. Briefing in the case is completed and oral arguments are scheduled for late-September. 

Since the rule was proposed in 2013, ABC has voiced serious concerns with the rule and has taken the following actions:

This article is intended for informational purposes only and does not constitute legal advice or opinion. 

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Last week, the House of Representatives passed H.R. 3354, the Make America Secure and Prosperous Appropriations Act, 2018, which provides $1.1 trillion in discretionary funding for the federal government through 12 individual appropriations bills—Interior; Agriculture; Commerce, Justice, Science; Financial Services; Labor, Health and Human Services, Education; Homeland Security; State, Foreign Operations; Transportation, Housing and Urban Development; Defense; Legislative Branch; Military Construction/Veterans Affairs; and Energy and Water.    

ABC identified several amendments as key votes for the 2017 scorecard during consideration of H.R. 3354. Below is a summary of ABC’s position on a number of the proposed amendments. 

• ABC opposed Rep. Don Beyer’s (D-Va.) Amendment #37, which was rejected by voice vote and would have prevented an expedited withdrawal of the previous administration’s “Waters of the U.S.” (WOTUS) rule. The underlying bill’s language allows the administration to bypass the Administrative Procedures Act to repeal the 2015 final rule so that they may work quickly to propose a new rule for notice and comment.

• ABC supported Amendment #173, submitted by Reps. Tim Walberg (R-Mich.) and Scott Perry (R-Pa.), which passed by a vote of 221-196. This amendment prohibits funds from being used to enforce the National Labor Relations Board’s controversial “ambush election” rule. ABC has consistently opposed this rule as unfair to employers and employees and has raised privacy concerns over the proposal’s distribution of employees’ personal contact information.

• ABC opposed Amendment #186, submitted by Rep. Keith Ellison (D-Minn.), which was rejected by a vote of 191-226. This amendment would have an effect similar to the Obama administration’s Fair Pay and Safe Workplaces Executive Order 13673, commonly referred to as “blacklisting,” which was repealed through H.J. Res. 37 when it was signed into law earlier this year. Rep. Ellison’s amendment would have acted as an automatic, potentially multi-year debarment of federal contractors while entirely circumventing longstanding and proven suspension and debarment procedures addressing Fair Labor Standards Act (FLSA) violations that are part of the federal contracting process. Moreover, the amendment completely ignores penalties and remedies that are already available under the FLSA. 

• ABC supported Amendment #187, offered by Rep. Bob Gibbs (R-Ohio), which passed by a vote of 215-201. This amendment would prohibit funds from being used to enforce the Occupational Safety and Health Administration’s (OSHA) final rule on Tracking of Workplace Injuries and Illnesses, commonly referred to as the “electronic reporting and anti-retaliation final rule.” The anti-retaliation provisions of this final rule would limit post-accident drug testing and safety incentive programs. Further, the rule would require many employers to electronically submit detailed injury and illness records to OSHA, which could be publicized and expose sensitive employee information.

• ABC expressed support of amendments submitted by Reps. Steve King (R-Iowa) and Matt Gaetz (R-Fla.) that would ensure no funds appropriated by this bill are used to implement, administer or enforce the Davis-Bacon Act. None of the offerings of these amendments were adopted.

• ABC expressed support of Amendment #167, submitted by Reps. Jason Lewis (R- Minn.), Paul Mitchell (R-Mich.), Thomas J. Rooney (R-Fla.), Drew Ferguson (R-Ga.), Lloyd Smucker (R-Pa.), and Glenn Grothman (R-Wis.), which would increase funding for Career and Technical Education (CTE) State Grants by $70,246,000. This amendment failed with a vote of 153-263.

• ABC expressed support for Amendment #44, offered by Reps. Bill Huizenga (R-Mich.) and Mike Kelly (R-Pa.), which would prohibit funds from being used to enforce OSHA’s final rule on occupational exposure to respirable crystalline silica. This amendment was reported in order, but was ultimately not offered.

ABC is proud to work with our elected officials to support these priorities of our members and will continue to pursue efforts to prevent harmful rules and regulations from impacting our industry and the jobs of hardworking Americans throughout the country. 

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ABC is encouraging all members to take action and submit comments to the Department of Labor’s (DOL) Wage and Hour Division on its Request for Information (RFI) on the 2016 overtime final rule, officially named the Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees. The final rule, had it gone into effect,  would have changed the federal exemptions to overtime pay under the Fair Labor Standards Act for “white collar” workers by doubling the current minimum salary level for exemption from $23,660 to $47,476 per year and automatically increasing it every three years. The public has the opportunity to submit comments on the RFI until Sept. 25, 2017.

On Aug. 31, 2017, the U.S. District Court for the Eastern District of Texas granted a motion for summary judgment against the final overtime rule and converted its earlier preliminary injunction (issued Nov. 22, 2016) to a permanent injunction. ABC participated in the legal challenge that resulted in the court overturning the rule.

Throughout the construction industry, employers and employees have come to rely on the current definitions of exempt job categories, which promote career advancement opportunities for workers while giving employers flexibility in setting hours and helping avoid misclassification errors.

If the overtime final rule had gone into effect on Dec. 1, 2016, it would have been extremely disruptive and harmful to both employers and many of their currently exempt employees. The final rule would have:

     • Deprived employees of workplace flexibility and advancement opportunities, 
     • Injured the morale of reclassified exempt workers, 
     • Created an undue burden on certain regions of the country, including southern states and rural
      areas, and
     • Significantly increased administrative costs of construction industry operations. 

Take action now and submit comments on the DOL’s RFI by the Sept. 25 deadline. Members can submit their concerns through the ABC Action Center or through the ABC Action App on either iPhone or Android devices.

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Enforcement of the Occupational Safety and Health Administration’s (OSHA) silica standard as it applies to the construction industry will begin on Sept. 23. The silica rule lowers the permissible exposure limit from the current standard of 250 micrograms per cubic meter of air to 50 micrograms per cubic meter of air, averaged over an eight-hour day, and an action level of 25 micrograms per cubic meter of air. In addition, the final rule requires contractors to follow several ancillary provisions, such as housekeeping and written exposure plans. Crystalline silica is ubiquitous on construction sites by virtue of its presence in many commonly used construction materials and products such as concrete, bricks, stone, asphalt, tile and countertops.

Resources on the silica final rule are available here:

• OSHA Resource Page
• Overview of the Silica Final Rule
• Fact Sheet on Construction
• Small Entity Compliance Guide—Construction
• Frequently Asked Questions  

Silica remains a top priority for ABC National, and we continue to have conversations with the Department of Labor. Any status updates will be included in Newsline.

Background:

Issued on March 25, 2016, OSHA’s Occupational Exposure to Respirable Crystalline Silica final rule lowers the permissible exposure limit from the current standard of 250 micrograms per cubic meter of air to 50 micrograms per cubic meter of air, averaged over an eight-hour day, and an action level of 25 micrograms per cubic meter of air. The final rule also requires contractors to follow several ancillary provisions, such as housekeeping and written exposure plans.

On April 6, 2017, OSHA delayed enforcement of the silica standard as it applies to the construction industry from June 23, 2017, to Sept. 23, 2017. On March 10, 2017, ABC, as a member of the Construction Industry Safety Coalition (CISC), sent a letter to the acting secretary of Labor requesting that the department delay enforcement of OSHA’s final silica rule by one year.

On April 4, 2016, ABC along with several national construction organizations filed a lawsuit against the final silica rule in the U.S. Court of Appeals for the D.C. Circuit. Briefing in the case is completed and oral arguments are scheduled for late-September. 

Since the rule was proposed in 2013, ABC has voiced serious concerns with the rule and has taken the following actions:

• ABC’s 2014 comment letter on the proposed rule
• More than 600 ABC members joined ABC National in submitting comments
• CISC’s 2014 comment letter on the proposed rule
• ABC’s post-hearing comment letter 
• CISC’s post-hearing comment letter
• CISC’s hearing testimony 
• CISC Economic Feasibility Study
• CISC extension request for silica compliance  

Learn more about the Construction Industry Safety Coalition here. 

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ABC’s strategic partner Autodesk, is offering a free pass to the Connect & Construct Summit—including hotel accommodations—for the first 50 ABC members who register. Every year, 10,000 professionals attend Autodesk University, which kicks off with the Connect & Construct Summit on Nov. 13. The Summit is a rare opportunity for contractors who are just beginning to explore BIM to learn how to improve productivity and collaboration with cutting-edge products from this construction software powerhouse. The summit offers a day of learning just for construction professionals. Learn how to increase your competitive advantage with new technology, get early insight into industry trends and see some amazing building projects first-hand! 

Autodesk is extending an exclusive offer to the first 50 ABC members who register to waive the Connect & Construct registration fee and pay for two nights at the host hotel, The Venetian, in Las Vegas. Register with the summit discount code 195AU17CCAH1 and hotel code AH171H. Don’t miss this exclusive opportunity—register today!

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On Sept. 19, the Senate Committee on Health, Education, Labor and Pensions (HELP Committee) held a hearing for two nominees to serve on the Equal Employment Opportunity Commission (EEOC), Janet Dhillon and Daniel Gade, Ph.D.

Dhillon, who was nominated by President Trump on June 29, has served in executive and legal roles for several Fortune 500 companies, most recently as executive vice president of Burlington Coat Factory Investment Holdings. 

If confirmed by the Senate, Dhillon will replace Commissioner Jenny Yang and serve a five-year term expiring July 1, 2022; she will also chair the EEOC, a role currently held by Victoria Lipnic.

On July 31, Trump nominated Gade, a decorated military veteran, to be a member of the EEOC, where he will serve the remainder of a five-year term expiring July 1, 2021.

Between 2011 and 2017, Gade taught political science and leadership courses at the U.S. Military Academy (West Point) before retiring from the Army. 

Gade has served on several advisory committees of the Secretary of Veterans Affairs and on the National Council on Disability. Additionally, he cofounded the Independence Project, an organization dedicated to veterans’ employment and empowerment. 

Newsline will continue to provide updates on these nominees and other EEOC news.

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Cutler Associates Inc. of Worcester, Mass., a member of ABC’s Massachusetts Chapter, has been awarded Accredited Quality Contractor (AQC) status by ABC.

The AQC program recognizes and honors construction firms that document their commitment to excellence in five key areas of corporate responsibility: quality, safety, employee benefits, training and community relations.  A company that meets the criteria set forth in the program and has earned Safety Training Evaluation Process (STEP) Gold, Platinum or Diamond status, is formally designated an “Accredited Quality Contractor.”      

Companies selected as an Accredited Quality Contractor receive:

• Wide recognition within the industry and business community and with the public 
• Authorization to use AQC language in bid documents
• Permission to use the AQC logo on letterhead, business cards and jobsite signs
• Access to AQC marketing materials such as hard hat stickers, membership plaques, etc. 
• Points on ABC National Excellence in Construction® award submissions
• Mention in the December issue of ABC’s magazine, Construction Executive, as well as eligibility to purchase specially priced packages for half-page, full-page and two-page designs

For more information, visit abc.org/aqc or contact aqc@abc.org. 

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On Aug. 29, the Equal Employment Opportunity Commission (EEOC) announced that the Office of Management and Budget (OMB) is initiating a review and immediate stay of the effectiveness of the pay data collection aspects of the Employer Information Report or EEO-1 form that was revised on Sept. 29, 2016, under the Obama administration.
 
According to an OMB memo informing the EEOC of its decision:

“After careful consideration and consultation with the Equal Employment Opportunity Commission, and in accordance with the Paperwork Reduction Act and its regulations at 5 CFR 1320.10(f) and (g), the Office of Management and Budget is initiating a review and immediate stay of the effectiveness of those aspects of the EEO-1 form that were revised on Sept. 29, 2016. These revisions include new requests for data on wages and hours worked from employers with 100 or more employees and federal contractors with 50 or more employees.”

The EEOC announcement also says that “the previously approved EEO-1 form which collects data on race, ethnicity and gender by occupational category will remain in effect.  Employers should plan to comply with the earlier-approved EEO-1 (Component 1) by the previously set filing date of March 2018.” 

To learn more about this issue, ABC’s general counsel, Littler Mendelson P.C., prepared the article, New EEO-1 Report Suspended Indefinitely.

ABC will continue to update member companies on this issue in Newsline.  

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ABC Greater Baltimore President and CEO Mike Henderson was recently invited to testify before a congressional subcommittee seeking answers on how to address declining employment among working-age men. He pointed to the chapter’s Project JumpStart, widely regarded as the most effective workforce development program of its kind in the region, as part of the solution. The program not only trains workers for high-paying careers in construction, but places graduates in professional jobs with dozens of area employers in commercial construction. 

Project JumpStart is an intensive, 89-hour, 13-week program designed to enable at-risk Baltimore residents enter a career in the skilled construction trades. Over the past decade, the program has graduated more than 1,000 residents and maintains a 75 percent job-placement record. In addition, nearly half of graduates are over the age of 35.

“We believe that there are thousands of men in their 30s and 40s who, give the right opportunity, can still make something out of their lives, gain a career and self-confidence and become contributing members of their community,”  Henderson told the House Committee on Ways and Means Subcommittee on Human Resources. Graduates, 75 percent of whom are ex-offenders, “knew that Project JumpStart was their best and possibly last chance to succeed in this life.”

One of them is Tyrone Ferrens, who also testified before the subcommittee. Ferrens enrolled in Project JumpStart after 14 arrests, jail time and court-ordered rehab. “It instilled in me something I did not have; a sense of hope,” he said. “Every tool I needed to succeed was provided, not just physical tools, but a resume, mock interviews, conflict resolution skills, employer expectations and basic knowledge of tools. From any legal hurdle, to transportation issues, to a learning issue, Project JumpStart was there with a solution.”

Today Ferrens is a journeyman electrician and homeowner who has rebuilt his family.

Project JumpStart’s success has already been replicated at ABC’s Metro Washington and Ohio Valley chapters, with more pilot programs in the works.

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