TAUC Legislative & Regulatory Update, February 2021
January was, to put it mildly, a very eventful month in Washington, D.C. President Biden and Vice President Harris were sworn in on January 20th, despite the mob that stormed the US Capitol on Jan.6 to disrupt the certification of election results. The Senate majority narrowly changed hands as the result of the two runoff elections in Georgia, and Vice President Harris is now the tie-breaking vote for Democrats in a 50-50 Senate. As a result, Democrats will take the chairmanship of Senate committees and Senator Schumer (D-NY) will control the Senate floor as Majority Leader.
As the new Administration and the 117th Congress get to work, the COVID-19 public health crisis continues to drive much of the Federal policy agenda. President Biden has proposed a package of $1.9 trillion in COVID response and relief measures. As Congress wrestles with how to advance this package, attention is also turning to a possible stimulus bill to bolster the economy as it recovers from the public health crisis. Any stimulus proposal is widely anticipated to contain significant investments in infrastructure.
Here is an exclusive update from TAUC on policy and regulatory issues of vital interest to contractors and the union construction and maintenance industry.
National Apprenticeship Act
The House is set to consider bipartisan legislation to reauthorize the National Apprenticeship Act. The legislation was introduced by Representatives Bobby Scott (D-VA), Brian Fitzpatrick (R-PA), Don Norcross (D-NJ), and David McKinley (R-WVA). Similar legislation passed the House by a vote of 246-140 last December but was not considered in the Senate before the end of the 116th Congress.
Both TAUC and the Construction Employers of America (CEA) support H.R. 447, the "National Apprenticeship Act of 2021," which expands and strengthens privately funded joint labor-management registered apprenticeship programs. The legislation would expand access to apprenticeships and training opportunities by codifying standards for registered apprenticeships. The bill will also provide funding to expand youth apprenticeships and pre-apprenticeship programs. The sponsors of the legislation say the goal is to create nearly one million new apprenticeship opportunities over the next five years.
Under the legislation, no funding would be made available to Industry Recognized Apprenticeships (IRAPs). IRAPs were included in a training rule finalized by the Trump Administration last year and would shift apprenticeship oversight and credentialing authority to industry groups. IRAPs were strongly opposed by TAUC and the union construction industry. The final rule explicitly exempted the construction industry.
Timing for Senate consideration of similar legislation is not clear at this point.
Emergency Temporary Safety Standard
President Biden recently issued an Executive Order (E.O.) directing the Occupational Safety and Health Administration (OSHA) to issue guidance on how to protect employees from COVID-19 in the workplace and to consider whether it is necessary to establish a national emergency temporary standard (EST) for all businesses to follow. Under the E.O., the standard must be issued by March 15 if OSHA decides it is necessary.
Currently employers are subject to a patchwork of state and local regulations related to COVID-19 workplace protections. TAUC and its partners in the CEA have supported the establishment of consistent national set of safety rules for contractors to follow. We also have urged that if it is determined that an EST is necessary that the DOL not override the effective practices developed by union contractors in coordination with their signatory unions.
While it considers the need to develop an ETS, OSHA has issued guidance to employers for implementing a coronavirus protection program and better identify risks which could lead to exposure and spread of COVID-19 in the workplace.
Walsh Confirmation Hearing for US DOL
The Senate Health, Education, Labor and Pension Committee will hold a hearing on President Biden's nominee for Labor Secretary, Boston Mayor Marty Walsh on Thursday, February 4th. Mayor Walsh has been Boston's mayor since 2013 and previously held a seat in the Massachusetts House of Representatives and is the former Secretary-Treasurer of the Boston Building Trades and a member of Laborers' Local Union 22. His nomination is expected to move quickly once the committee hearing is completed. If confirmed, Walsh would be the first union member to serve as Labor secretary since the 1970's.
DOL Reviewing Rules Issued Late in the Trump Administration
The Biden Administration is issued an Executive Order (E.O.) calling for the review of rules implemented late in the Trump Administration. The E.O. also halted or delayed implementation of these so-called "midnight" regulations that have not yet taken effect as of Inauguration Day. Among the rules being reconsidered:
Financial Factors in Selecting Plan Investments – DOL finalized this rule on January 12 to amend rules governing a fiduciary's investment duties under ERISA. The DOL's stated purpose in adopting the Rule is to confirm that plan fiduciaries must select plan investments solely based on financial considerations that impact the economic value of the investments. The rule would require trustees to focus only on investment returns, undermining the ability of collectively bargained plans to investment in opportunities that produce unique "pecuniary" benefits – such as additional man hours and plan contributions. TAUC and the CEA submitted comments opposing this rule.
Worker Misclassification – The DOL will be reviewing a Department of Labor rule issued on January 7th regarding Fair Labor Standards Act (FLSA) guidelines for determining if a worker is an independent contractor or an employee. The DOL stated its goal is to simplify, clarify and harmonize principles federal courts have used to determine what workers are 'employees' by creating a new five factor "economic reality" test. TAUC opposed the rule, which will make it easier for businesses to classify workers as independent contractors, which is already a crisis in the construction industry.
Keystone XL Pipeline – President Biden revoked the cross-border presidential permit issued by President Trump. The permit allowed for the construction of the TransCanada Corporation Keystone XL oil pipeline that will run from Canada to Texas. TC Energy, the company constructing the pipeline had agreed to a project labor agreement reached with LiUNA, the IUOE, the UA and the Teamsters. The company announced that it will eliminate more than 1,000 construction jobs as a result of the loss of the permit.