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  • Mon, May 16, 2022 8:25 AM | Anonymous member (Administrator)

    The Construction Industry Round Table (CIRT) submitted comments in response to the U.S. Department of Labor’s proposal to amend regulations issued under the Davis-Bacon and Related Acts that set forth rules for the administration and enforcement of the Davis-Bacon labor standards that apply to Federal and federally assisted construction projects.

    You can read the full comment letter HERE.

  • Tue, May 10, 2022 3:10 PM | Anonymous member (Administrator)

    As discussed at the CIRT’s recent spring conference, actions are being taken to make the most of the Bipartisan Infrastructure Law’s investments and ensure infrastructure projects are delivered on time and on budget. The Administration is releasing its new Permitting Action Plan to strengthen and accelerate Federal permitting and environmental reviews by fully leveraging existing permitting authorities, as well as new provisions in the Bipartisan Infrastructure Law.
     
    The Action Plan outlines the Administration’s strategy for ensuring that Federal environmental reviews and permitting processes are effective, efficient, and transparent, guided by the best available science to promote positive environmental and community outcomes, and shaped by early and meaningful public engagement. Taken together, these new steps it is hoped will help strengthen supply chains, lower costs, grow the clean energy economy, revitalize communities across the country, support good-paying jobs, and deliver infrastructure investments on task, on time, and on budget without unnecessary bureaucratic delay. 

    Key Elements of the Permitting Action Plan:
    Strengthen federal approaches to environmental reviews and permits by:
    (1) accelerating permitting through early cross-agency coordination to appropriately scope reviews, reduce bottlenecks, and use the expertise of sector-specific teams;
    (2) establishing clear timeline goals and tracking key project information to improve transparency and accountability, providing increased certainty for project sponsors and the public;
    (3) engaging in early and meaningful outreach and communication with Tribal Nations, States, territories, and local communities;
    (4) improving agency responsiveness, technical assistance, and support to navigate the environmental review and permitting process effectively and efficiently; and
    (5) adequately resourcing agencies and using the environmental review process to improve environmental and community outcomes.

  • Mon, May 09, 2022 4:27 PM | Anonymous member (Administrator)

    A coalition of business organizations, including CIRT and many of the design/construction industry groups, joined together to formally requested the Department of Labor’s (DOL or Department) Wage and Hour Division abandon or at least postpone issuance of its announced proposed rulemaking altering the overtime regulations under the Fair Labor Standards Act (FLSA).  The Partnership to Protect Workplace Opportunity (PPWO or Partnership) urged this cancellation due to significant concerns with supply chain disruptions, workforce shortages, inflationary pressures, and the shifting dynamics of the American workforce following the COVID-19 pandemic.  The group pointed out that any rule change now would be ill-advised; especially since DOL last updated the overtime regulations less than three years ago (taking effect in January 2020), which strongly suggests there is no need for urgency in issuing more changes.

  • Tue, May 03, 2022 10:29 AM | Anonymous member (Administrator)

    CIRT joined a number of construction industry groups and associations during a “listening” session conducted by the Department of Labor, Wage & Hour Division, regarding their plans to issue a proposal changing the salary level test for exemption from minimum wage and overtime pay for executive, administrative, and professional employees (i.e., “salary threshold” exemption).  Generally, CIRT joined others in expressing the view this was a particularly inopportune time to suggest a major across the board hike to the salary threshold – particularly given the inflationary spiral impacting the country. Moreover, CIRT stresses that this requirement should be seen only as a THRESHOLD salary level, NOT an attempt to set what “should” be the salary for employees by the Department. . .  That determination rightfully and appropriately belongs to the private sector companies based on given market, economic, regional, industry, company, and competitive norms. Notwithstanding, DOL left the distinct impression that there will be a rulemaking in the near future proposing a substantial hike; even though one just took effect in January 2020.

    Specific Issues
    The DOL asked for input on a set of specific matters, as follows:
    (A) The appropriate salary level above which the exemptions for bona fide executive, administrative, or professional employees should apply?
    This question seeks to substitute for the complex law, regulations, and processes by simply focusing on what “the number” should be for exempt salaries. This approach is troubling given the
    Wage & Hour Division’s apparent purpose or goal is to ensure that middle class jobs pay middle class wages [by] extending important overtime pay protections to millions of workers and raising their pay;” which is wholly inappropriate. As discussed at the time of the Texas court decision in 2016, DOL should not be fixated on a number as if it is the “only” measure or determinative factor for eligibility in the executive, administrative, or professional exemption. [It was noted, basic economics – dictates that costs are passed along raising prices – therefore, arbitrary raises to by regulatory rules will come back around in higher expenses for goods and services, defeating the DOL’s reasoning that they can determine what a “middle class” pay should be.  AND, as noted above – this exercise is meant to set a THRESHOLD or FLOOR. .  not an average salary level].

    (B) The cost and benefits of increasing the salary level to employers and employees, etc.?
    In realty the business community would likely face unpalatable choices when it comes to costs and benefits with a substantial change to the salary threshold; namely:

    • Reduce their service levels to avoid overtime – which would undermine the effectiveness and possibly safety protocols.
    • Convert the affected employees to non-exempt status at a lower hourly rate, so that payment of overtime does not increase their overall annual compensation – which would harm morale and be perceived as a demotion.
    • Cut positions/not hire to fund the additional overtime obligation – which would hurt the firms by diminishing and hampering their ability to seek out new projects/deliver on current ones (and harm those terminated);
    • Require the remaining exempt employees to absorb some of the duties of the newly non-exempt employees – which would be viewed as an unfair burden by the remaining exempt employees who are at or near capacity already, while restricting the newly non-exempt employees from career growth; and
    • Finally, such a change in status will complicate or impede remote work, flex hours, and other accommodations made to the workforce (particularly in lieu of Covid impacts), not to mention it will further impact construction firms regarding application of Davis-Bacon Act prevailing wage requirements to formerly professional staffs now considered hourly.
    (C) The best methodology for updating the salary level, and the appropriate frequency of updates?
    It was discussed the most favorable approach would allow some flexibility especially avoiding a “one size fits all” process, with longer year intervals (unless a strong showing based on carrying the burden of economic, market, and competitive proof to reduce the time). The process would include:

    (i) Maintain a system that adjusts the salary threshold on a periodic, predictable, and manageable level for businesses to plan [thus, not until January 2025, i.e., five years since the last adjustment to the salary threshold took effect];
    (ii) Provide for or take into account depressed areas or industries by use of a two-thirds (or three-quarters) percentage factor for inflation (e.g., if inflation is a cumulative 12% over five years, the multiplier to the salary is x 1.08 (12 x .667) or 1.09 (12 x .75);
    (iii) regional accommodations for cost of living, and
    (iv) possible urban or locality adjustments or exceptions if necessary. 

    (D) Whether other changes to the overtime regulations are warranted?
    Minor adjustments would be useful to:
    (a) clarify that the threshold/minimum salary level amount applies only to full-time exempt employees, and
    (b) that the salary level may be pro-rated for part-time employees otherwise meeting the “exempt” duties and salary basis requirements.


  • Wed, April 27, 2022 2:16 PM | Anonymous member (Administrator)

    In a show of independence, the Office of Advocacy, an independent office within the U.S. Small Business Administration SBA), held a virtual roundtable to hear directly from small businesses about DOL’s proposed rule to update regulations implementing the Davis Bacon Act (DBA). The SBA conducted a session with parties concerned with expansion of the Davis-Bacon Act requirements. Comments on DOL’s proposed rule on Davis-Bacon are due May 17, 2022.

    Background
    On March 18, 2022, the Department of Labor (DOL) published a proposed rule to update regulations implementing the Davis-Bacon Act, which applies to federal and federally-assisted construction projects.

    DOL has prepared an initial regulatory flexibility analysis for this rulemaking and seeks feedback on the numbers of small businesses affected and their compliance costs.
    (a) The proposal
    revises definitions such as “site of the work” to include sites where prefabricated buildings are produced and “scope of work” to include energy infrastructure. [These changes may lead to more small firms being required to comply with Davis-Bacon labor standards]. 
    (b)
    The proposal also changes the methodology for determining the prevailing wage. [DOL currently uses the average rate if a majority of workers do not receive the same wage rate. Under the proposed rule, if a majority of workers are not paid a particular wage, DOL will identify any wage rate that is paid to more than 30 percent of the workers as prevailing. If there is still no wage prevailing, the agency will revert to an average rate to determine prevailing wage]. 
    (c)
    DOL also proposes to update non-union prevailing rates every three years to address out-of-date wage determinations.

  • Thu, March 31, 2022 1:19 PM | Anonymous member (Administrator)

    After conducting an initial round of discussions on a proposed overtime rule change regarding the salary exemption, the Department of Labor (DOL) has yet to announce the schedule for eight more meetings that are to include the design/construction community (see, CIRT story on this matter from January 25, 2022). This second set of “listening sessions” are intended to go through the beginning of May.

    So far, according to reports, in the earlier round the agency has met with trade associations representing general industry, various PPWO members, and higher education. In all three meetings, stakeholders have uniformly asked the Department to delay any proposed rule, asserting this is not the time for a change. Particularly helpful have been specific examples of how a change in the rules would impact certain occupations and employees’ opportunities for training, career development, and remote work.

    Timing of the proposed rule remains unclear as DOL’s stakeholder meetings stretch past the April timeframe. The Spring Regulatory Agenda, which the government should release in the next month or so, may provide more specifics.


  • Thu, March 17, 2022 2:56 PM | Anonymous member (Administrator)

    Keeping with the green tradition, that is St. Patrick’s Day green, EPA announced today updates to its priority list of Superfund designated sites around the country.

    See Announcement for full details.


  • Fri, February 04, 2022 12:26 PM | Anonymous member (Administrator)

    President Biden is set to sign an Executive Order (E.O.), that will require use of Project Labor Agreements (PLAs) on certain direct federal contracts.  The order will cover federal construction projects costing more than $35 million, which are estimated to affect approximately $265 billion in total federal construction contracting meeting the targeted criteria.  More specifically, the E.O.’s PLAs requirement will only apply to provisions in the recently passed $1.2 trillion “Bipartisan Infrastructure Law” that are direct federal procurements; meaning projects funded by grants to non-federal agencies are excluded. Once signed today (02/04/22), the Order will go into effect immediately.

    The Executive Order has been criticized for MANDATING or requiring the PLAs in all federal contracts meeting the criteria, without regard to the larger picture as to the impacts it will have on competition, costs to the projects (increasing them 12-20% according to a Beacon-Hill Institute study), and workforce displacements – especially when the economy is facing workforce shortages due to other federal policies and initiatives. [CIRT is not opposed to the use of PLA’s when the parties find it to be appropriate to their needs, but the Round Table has consistently opposed mandating or requiring it on contracts with a “single size fits all” approach as reflected in the new Biden E.O.]  In addition, the Order once again circumvents Congress, where members of the design/construction community have urged U.S. House and Senate lawmakers to cosponsor the “Fair and Open Competition Act” (H.R. 1284/S. 403), which would prevent the federal government from mandating PLAs as a condition of winning federal or federally assisted construction contracts.

  • Tue, January 25, 2022 2:04 PM | Anonymous member (Administrator)

    CIRT joined 110 organizations representing businesses, states, municipalities, universities, and non-profits to formally request the U.S. Department of Labor (“DOL”) hold stakeholder meetings PRIOR to the development and issuance of a notice on new rules related to overtime requirements for salaried employees.

    The importance of this potential new rulemaking is the target: “exemption of bona fide executive, administrative, and professional employees from the Fair Labor Standards Act’s minimum wage and overtime requirements” (also known as the “white collar” exemption).  This exemption strikes at the heart of CIRT member firms – which have a large number of these so-called “white collar” or salaried exempted employees in their workforce.

    DOL had intended to simply issue an Notice of Proposed Rulemaking, without prior discussion, picking-up a highly controversial and rejected Obama-era arbitrary “one size fits all” significant rulemaking, particularly with respect to the numbers of employees affected, cost for labor, and difficulty to implement – never mind the impact to the workforce norms.

    NOTE: Effective Jan. 1, 2020, President Donald Trump's administration raised the salary threshold to $35,568 from $23,660 at the time. While the Biden DOL has not stated how high it plans to raise the salary requirement to still be exempt from overtime payments, Congressional members and allies have urged it be by over 100% to at least to $82,732 by 2026.

    SEE Attached Letter for details

    [BACKGROUND STORY: JULY 3, 2015 – Overtime Rule Changes for SALARIED Employees (WERE) Proposed President Obama is touting a proposed rule change that may affect millions of “salaried/exempt” employees that heretofore were not eligible by dent of the “duties test” and their pay levels for overtime.  The Department of Labor (DoL) is planning to use its authority under the Fair Labor Standards Act of 1938 (which allows it to do so without Congressional approval) to adjust/change the amount of pay a “salaried” employee must receive to be still “exempt” from overtime pay.  Currently, firms that pay salaried workers less than $455 a week (or $23,660 a year) must pay overtime to them, even if they meet the “duties test” (i.e., they are correctly classified as executive, administrative, and/or professional employees).   DoL proposes to increase the salary level threshold to $50,400 per year (or approximately $970 per week) thereby increasing the number of “salaried” employees eligible for overtime (some estimate that would mean about 40% of salaried employees) – again, notwithstanding if they meet the “duties test.”  The ambitious timetable for this proposed change is for it to take effect on the first of January 2016 (merely a coincidence it is a presidential election year].

  • Wed, December 01, 2021 12:45 PM | Anonymous member (Administrator)

    BREAKING NEWS!! U.S. District Judge Gregory Van Tatenhove on Tuesday blocked President Joe Biden’s COVID-19 vaccine mandate for some federal contractors.  In short, the federal judge found that Biden likely lacks the authority to impose such a mandate across the board saying in part: “The question presented here is narrow. Can the president use congressionally delegated authority to manage the federal procurement of goods and services to impose vaccines on the employees of federal contractors and subcontractors? In all likelihood, the answer to that question is no.”  As a result, Van Tatenhove granted a request for a preliminary injunction covering the three states that requested the stay – namely Kentucky, Ohio, and Tennessee.

    Biden signed an executive order in September that set-in motion a process that had OSHA take the lead on private sector businesses, with the assumption federal contractors could force all their workers to get a COVID-19 vaccine unless the worker is entitled to an exception based solely on the fact they were receiving federal dollars.  Any contractors who did not comply with the order, originally set with a Dec. 8 deadline, were poised to lose the government’s business.

    The federal judge sited the Tenth Amendment to the Constitution while finding the three states arguments persuasive as they related to:  the vaccine mandate was both illegal and unconstitutional, in part because it was imposed with little regard to “important aspects surrounding the mandate, including but not limited to economic impacts, cost to States, cost to citizens, labor-force and supply-chain disruptions, the current risks of COVID-19, and basic distinctions among workers such as those with natural immunity to COVID-19 and those who work remotely or with limited in-person contacts, among other aspects.”

    UPDATE:
    This fairly narrow jurisdictional preliminary injunction joins other legal decisions that have stopped or hindered the implementation and coverage of the vaccine mandate attempt. 
    Specifically:
    (a) U.S. 5th Circuit Court placed a preliminary injunction (until the matter is fully adjudicated) against the mandate being imposed on private sector businesses. (The Biden Administration has sought to end-run this order by forum shopping the matter to the U.S. 6th Circuit Court seeking a more favorable opinion);
    -- and --
    (b) A preliminary injunction has already been entered against the Biden administration’s health care worker vaccine mandate; among other legal decisions and pending matters.


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