Browse by Date - 201801

AGC this week urged President Trump to rescind President Obama’s project labor agreement (PLA) executive order and replace it with a new order.  AGC asked President Trump to issue a new order that ensures fair and open competition on federal construction contracts by preventing agencies from mandating contractors to sign a PLA as a condition of winning a federal or federally assisted construction contract and from implementing a preference policy for bids with a PLA.  The Obama-era order encourages federal agencies to mandate PLAs on projects valued at $25 million or more.  Until President Trump acts, that executive order remains in effect.

On Dec. 14, the U.S. Environmental Protection Agency (EPA) released its Semiannual Agenda of Regulatory and Deregulatory Actions and Regulatory Plan as part of the government-wide Unified Agenda—setting the path for the agency over the next year. Of particular interest to contractors, the Regulatory Agenda includes the repeal and replacement of the 2015 Waters of the United States Rule (see related article), which will remain a focus for the agency.  AGC also notes that the agency is reworking the 2015 coal combustion residual disposal rule (e.g., fly ash).

The AGC Charities Inc, the charitable arm of the Associated General Contractors of America, is providing 83 construction workers in Texas with a total of $195,000 in donated funds to help cover losses they incurred as a result of Hurricane Harvey. The checks, which amount to $2,350 per construction workers, are intended to help employees of firms that belong to the association cover the costs of uninsured and uncompensated damages caused by the storm.

On January 22, 2018, the U.S. Supreme Court issued a ruling that legal challenges to the 2015 Waters of the United States (WOTUS) rule belong in the district rather than appellate courts.  In short, this Supreme Court decision will result in lifting an appellate court’s nationwide stay of the 2015 WOTUS rule that has been in effect since Oct. 2015.  The definition of WOTUS dictates the scope of the federal government’s control and Clean Water Act permitting authority over construction work in water and wet areas.  Whereas this ruling may be a victory for industry in the long term, the timing of the decision is unfortunate as the Administration is still working to repeal and replace the 2015 WOTUS rule.  In the short term, we anticipate confusion as the process plays out. 

House Transportation Committee Considers Environmental Streamlining

On Jan. 5, AGC urged the U.S. Fish and Wildlife Service (FWS) to remove the goal of “net conservation gain” from the Service’s Mitigation Policy and Endangered Species Act (ESA)–Compensatory Mitigation Policy, finalized in late 2016.  AGC asserts that that the “improvement” goal is not supported under the ESA; the goal fails to provide a clear limit on how much mitigation is necessary and blurs the line between recommendations and requirements.

On January 4, 2018, following Presidential Executive Order (EO) 13813, the U.S. Department of Labor (DOL) announced its plan to expand access to healthcare through small business health plans. EO 13813, “Promoting Healthcare Choice and Competition Across the United States,” directed the U.S. Departments of Labor, Health and Human Services (HHS), and the Treasury to develop rules to expand association health plans (AHPs), short-term limited duration insurance, and health reimbursement arrangements (HRAs).

On January 5, 2018, the U.S. Department of Labor (DOL) reissued 17 previously withdrawn opinion letters addressing a wide range of topics under the Fair Labor Standards Act (FLSA). 15 of the 17 letters were originally signed off on during the final days of the Bush administration, but were withdrawn by the Obama administration “for further consideration by the Wage and Hour Division” on March 2, 2009, and stated that it would “provide a further response in the near future,” but never did. Instead, the Obama administration stopped issuing these letters altogether, instead releasing broader “Administrator’s Interpretations” that laid out how the department viewed employers’ specific obligations under the law. In June 2017, Secretary Acosta announced that he would reinstate the practice of issuing opinion letters.

AGC of America’s 99th Annual AGC Convention in New Orleans, LA, will feature a session called “State of the (Building Trade) Unions” where the Brent Booker, secretary-treasurer of North America’s Building Trade Unions, will speak.  The session is scheduled for Monday, Feb. 26, 3:00-4:30 p.m.  All Convention registrants are invited to attend.  While organized labor represents a minority of workers in construction, its actions have a significant impact on the industry and on the nation in general, making this session of interest to both union and nonunion contractors and chapters alike. 

On Dec. 19, 2017, the U.S. Court of Appeals for the Ninth Circuit became the fourth federal appellate court to expressly reject the U.S. Department of Labor’s (DOL) six-part test for determining whether interns and students are employees under the Fair Labor Standards Act (FLSA). On January 5, 2018, the DOL clarified that going forward, the Department will conform to these appellate court rulings by using the same “primary beneficiary” test that these courts use to determine whether interns are employees under the FLSA.

Republicans’ brief control of the National Labor Relations Board ended with the expiration of Chairman Philip Miscimarra’s term on Dec. 16, 2017.  In anticipation of the change, the Board issued several employer-friendly decisions with significant impact.  The most high-profile among them is a ruling in Hy-Brand Industrial Contractors that overturns the controversial, AGC-opposed joint-employer standard established in Browning-Ferris Industries.