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  • Thu, January 11, 2024 3:15 PM | Anonymous

    The Biden Administration released a new rule on how to classify “independent contractors” which narrows the definition and restricts its application.  The Department of Labor’s final rule sets forth an analysis for determining whether a worker is classified as an employee or independent contractor under the Fair Labor Standards Act. To that end, a six-factor test that considers: (1) opportunity for profit or loss depending on managerial skill; (2) investments by the worker and the potential employer; (3) degree of permanence of the work relationship; (4) nature and degree of control; (5) extent to which the work performed is an integral part of the potential employer's business; and (6) skill and initiative.  [NOTE: the new rule does not adopt the “ABC” test that some states have used. Also, additional factors may be relevant if they bear on whether the worker is economically dependent on the potential employer for work -- which seems like a given for nearly everyone in the workforce].

    The new rule will rescind the 2021 “Independent Contractor Rule” which sort to clarify and expand reasonable criteria given the changing nature of the workforce particularly during the COVID-19 shutdowns. The Biden Administration rule will become effective March 11, 2024; barring any likely injunctions while legal challenges are decided.

    For details on the new rule, see: Federal Register: Employee or Independent Contractor Classification Under the Fair Labor Standards Act

  • Tue, November 07, 2023 9:58 PM | Anonymous member (Administrator)

    CIRT submitted a comment on the Department of Labor, Wage and Hour Division’s proposed rule nearly doubling the “salary threshold” required to meet the exemption from requirements for hourly/overtime status.  CIRT pointed out that “This is a particularly inopportune time to suggest a major across the board hike in the salary threshold – particularly given the recent substantial increase a few years ago (which DOL has failed to show any reason to renew), and the potential to continue or fuel an inflationary spiral that higher wages my ignite or prolong in the U.S. economy.”  Moreover, the Round Table also pointed out that what appears to be the Wage & Hour Division’s intent i.e., to ensure that middle class jobs pay middle class wages [by] extending important overtime pay protections to millions of workers and raising their pay;” -- is wholly beyond the Wage & Hour Division’s authority.

    CIRT emphasized that the “salary” portion of the exemption test is a THRESHOLD salary level, NOT an attempt to set what “should” be the salary for employees by the Department. . .  That task rightfully and appropriately belongs to the private sector firms to determine given market, economic, regional, industry, company, and competitive norms.

    For details, see attached CIRT’s Comment Letter.

  • Wed, November 01, 2023 10:05 AM | Anonymous

    A wide array of construction/design industry groups joined together to address concerns regarding Treasury’s Notice of Proposed Rulemaking, Increased Credit or Deduction Amounts for Satisfying Certain Prevailing Wage and Apprenticeship Requirements. The rulemaking proposes regulations clarifying the applicability of tax credits for the construction of private clean energy projects funded by the “Inflation Reduction Act” (hereinafter IRA)––including solar, wind, hydrogen, carbon sequestration, electric vehicle charging stations and more––conditioned on compliance with controversial expansion of prevailing wage and government-registered apprenticeship requirements. [Accordingly, project developers who satisfy these regulations are eligible for a 500% increase in tax credits compared to baseline tax credits offered to developers under previous regulations].

    The coalition’s comments point out, clean energy developers are not required to mandate the use of PLAs in order to receive enhanced tax credits, but the coalition believes this new and overly expansive policy proposal (which was not included in the IRA statute or initial IRS guidance -- will coerce developers into mandating PLAs to avoid extreme penalties for violating new and disruptive labor policies.  This is a remarkable expansion of pro-PLA policy onto private construction projects using a novel approach through the U.S. tax code. The organizations in the coalition have engaged in the rulemaking process in order to preserve “a record below” for any possible future legal actions.

    For further information, see coalition letter on this matter Opposing PLA Requirements.

  • Thu, September 07, 2023 1:09 PM | Anonymous member (Administrator)

    CIRT has joined with the Coalition for Workplace Safety (CWS) organizations to request a 60-day extension to the comment period on the Occupational Safety and Health Administration’s (OSHA) proposed rulemaking on new “walkaround” privileges to union representatives.  The extension is being sought to provide the business community with sufficient time to analyze and respond to OSHA’s proposed changes to its “worker walkaround representative designation” process.  The proposed rulemaking allows – for the first time in the agency’s history – employees to designate nonemployees as their representative during facility walkarounds with OSHA Compliance Safety and Health Officers. This is a significant change to the agency’s procedures for workplace safety inspections. A 60-day extension to the comment period would ensure the regulated community has the opportunity it needs to analyze the changes, assess its potential impacts, and draft comprehensive comments that will fully address the consequences of these changes on the economy, business operations, and workplace dynamics.

    [NOTE: The CWS is comprised of associations and employers who believe in improving workplace safety through cooperation, assistance, transparency, clarity, and accountability. CWS believes that workplace safety is everyone’s concern. Improving safety can only happen when all parties – employers, employees, and OSHA – have a strong working relationship].
                   
    For more information see: Notice of Proposed Rulemaking, “Worker Walkaround Representative Designation Process” (88 FR 59825; RIN: 1218-AD45).

  • Thu, August 17, 2023 1:12 PM | Anonymous

    The Department of Labor is offering a free online seminar regarding the recently announced final changes updating Davis-Bacon regulations for federal contractors doing infrastructure type work.

    To register to attend and learn more about the free webinars on Sept. 13 & 14, 2023 go to:  DOL Seminar on Davis-Bacon and Related Acts Regulations.

  • Tue, August 15, 2023 3:14 PM | Anonymous

    After of months of development and thousands of comments, U.S. Department of Labor has issued a final rule, Updating the Davis-Bacon and Related Acts Regulations, which will make comprehensive revisions to the Act and related regulations that apply to federal and federally assisted construction projects funded by taxpayers. The voluminous DOL final rewrite, over 600 pages plus, comes some 40-years since the last changes were adopted to Davis-Bacon Act requirements. The final version details scores of significant proposed new rules (e.g., prevailing wage matters, wage determinations, and even critically important changes to definitions – such as site of work, prime contractors, and even the word agencies), many of which will be likely targets for litigation.

    Due in part to the massive nature of the final rule, the DOL has published a chart comparing the old and new Davis-Bacon regulations at https://www.dol.gov/agencies/whd/government-contracts/construction/rulemaking-davis-bacon/dba-comparison-charts and provided other resources here: https://www.dol.gov/agencies/whd/government-contracts/construction/rulemaking-davis-bacon

    Interestingly, the proposed and now final version of the rule have run into “bi-partisan” opposition or resistance on both the House side (House Education and Workforce Committee), and on the Senate side (HELP Committee) -- mostly on the grounds/concern with adding costs to infrastructure projects in a time of inflationary pressure. Many expect additional industry and likely state/local lawmakers, and other public officials will join this push back now that the final rule has been issued.

    Background:
    The 1931 Davis-Bacon Act and related regulations require contractors and subcontractors that perform work on federal and federally funded construction projects of $2,000 or more to pay a government-determined prevailing wage and benefit rate on an hourly basis to on-site construction workers. According to the DOL rulemaking, the Davis-Bacon Act and 71 active Related Acts collectively apply to an estimated $217 billion in federal and federally assisted construction spending per year—about 63% of all government construction put in place—and provide government-determined wage rates for an estimated 1.2 million U.S. construction workers.


    The Congressional Budget Office estimates that repealing the 1930s-era Davis-Bacon Act would save the federal government $24.3 billion in spending between 2023 and 2032. A May 2022 study found that the Davis-Bacon Act costs taxpayers an extra $21 billion a year, increasing the price tag of construction projects by at least 7.2% and inflating construction workforce wages by 20.2% compared to local market averages if the DOL calculated prevailing wages using modern and scientific methodology via the U.S. Bureau of Labor Statistics.

  • Thu, April 20, 2023 1:52 PM | Anonymous

    The Equal Employment Opportunity Commission (EEOC) recently singled-out construction (specifically naming the industry) for what it claims is a lack of diversity. The reference was included in the Commission’s latest , the official operating roadmap or strategic enforcement plan (SEP) that will guide the agency’s enforcement efforts through 2027. In essence, the EEOC has put the entire industry on notice to expect more scrutiny and possibly increased enforcement and legal procedures to right what it considers racial, gender, and other inequities/imbalances in the composition or make-up of the workforce. Of course, it has long been known to the industry that it does not attract large enough numbers of women and minorities to its workforce, but that is NOT necessarily due to discrimination or prejudices, but possibly to the nature of the work. Programs like ACE Mentor of America, Safety Week Initiative, and DEI efforts all address aspects of attracting, retaining, and developing a diverse workforce.

    For more information see, the EEOC’s proposed strategic enforcement plan [Also of note: CIRT’s Spring Conference will have a panel session on Workforce/Talent that will include this subject, Wed. morning, April 26th].

  • Thu, October 13, 2022 2:14 PM | Anonymous

    CIRT joined a large cross-section of construction organizations, businesses, and related groups to file a unified comment in opposition to the Federal Acquisition Regulatory Council’s (FAR) proposed rule implementing President Biden’s Executive Order (E.O.) 14063.  The rule would establish in the regulations the controversial government-mandated PLAs for large scale construction projects over $35 million in total value. CIRT does not oppose PLAs, but rather the imposition/mandating of them on projects; thus reducing potential competition, impacting cost, and possibly undercutting quality. There are no compelling reasons or rationales in terms of economy and efficiency to make PLAs required or even preferred on federal projects. Those twin goals are best left to open and fair competition across the board – whether union or non-union shops/workforces.

    CIRT member firms are encouraged to offer their own comments by the deadline October 18, 2022 on the rulemaking: Docket No. FAR-2022-0003; Notice of Proposed Rulemaking on Federal Acquisition Regulation (FAR); FAR Case 2022-003, Use of Project Labor Agreements for Federal Construction Projects [RIN: 9000-AO40]

    [For details see, Coalition Letter]

  • Thu, August 18, 2022 6:53 PM | Anonymous

    The Biden Administration will drop a pro-PLA proposed rule expected to be officially published in the federal register tomorrow.  There is a 60-day comment period on the proposed rule. The rulemaking seeks to implement and seems to be similar to and fairly consistent with Biden’s EO 14063.  There are still some unresolved questions on exemptions for PLA projects and regulatory impact analysis to be flagged by the Small Business Administration, etc.  [More to follow on this #BreakingNews].

    Also, with respect to the recently signed into law so-called “Inflation Reduction Act,” buried in the massive $750 Billion bill are some concerns about controversial labor policies that will needlessly increase costs, reduce competition and undermine America’s swift transition to clean energy. These center around the unprecedented expansion of Davis-Bacon Act requirements (and government-registered apprenticeship mandates) via the U.S. tax code onto private green energy projects. This certainly raises the stakes on the forthcoming U.S. Department of Labor final rule implementing changes to Davis-Bacon Act regulations (and likely legal challenge). 

  • Mon, May 16, 2022 8:25 AM | Anonymous

    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.

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