Government Contractor Apprenticeship Incentives under the Inflation Reduction Act

The Inflation Reduction Act of 2022 offers several benefits to government contractors participating in apprenticeship programs, including increased tax incentives and contributions to workforce development. To qualify, contractors must adhere to specific eligibility criteria:

• Employing Qualified Apprentices: Contractors must hire apprentices in registered programs recognized by relevant authorities. These programs typically involve a blend of on-the-job training and classroom instruction, leading to certification in a trade or occupation.
• Minimum Percentage of Construction Work Hours: Contractors must ensure that qualified apprentices perform a certain proportion of labor hours for construction, alteration, or repair work. The Act may specify varying percentages based on the project’s construction commencement year.
• Compliance with Prevailing Wage Standards: Contractors must pay laborers and mechanics employed in construction work no less than prevailing wage rates set by the Department of Labor for their respective classifications in the geographic area.
• Documentation and Recordkeeping: Contractors must maintain detailed records of laborers, mechanics, and apprentices, including hourly rates, hours worked, deductions, and actual wages. Proper recordkeeping is essential for demonstrating compliance and auditing.

Adhering to these requirements is crucial for contractors to qualify for tax incentives and avoid penalties or disqualification. Positive outcomes may include a skilled workforce and improved project outcomes. However, government contractors may face challenges, such as initial investment costs and compliance burdens.

NLRB Final Rule on Joint-Employer Status Vacated by Federal Court

On March 8, 2024, Judge J. Campbell Barker made a significant ruling, vacating the National Labor Relations Board’s (NLRB) new joint employer rule and reinstating the 2020 rule in response to a lawsuit filed by a coalition of industry associations led by the U.S. Chamber of Commerce. This decision immediately affects how businesses navigate joint-employer relationships under the National Labor Relations Act (Act).

The 2023 rule, issued by the NLRB in October, redefined the criteria for determining joint-employer status. It broadened the definition, allowing multiple entities to be considered joint employers if they collectively influenced essential terms of employment. This approach, aligning with common-law agency principles, recognized the significance of indirect control in determining joint-employer status.

However, legal challenges prompted the NLRB to delay the implementation of the 2023 rule until February 26, 2024. And now, with Judge Barker’s ruling, the 2020 rule, with its stricter requirement of substantial direct control, takes precedence once again.

The 2020 rule imposes a higher threshold for establishing joint-employer status, focusing on direct and immediate control over essential employment terms. This narrower definition may provide more clarity for businesses and limit liability for labor violations and obligations.

Although the NLRB may appeal Judge Barker’s decision, businesses must currently adhere to the 2020 rule’s standards. This uncertainty underscores the importance of understanding joint-employer relationships, particularly for those involved in contracting, joint ventures, or other collaborative arrangements.

Michigan Implements Updated Prevailing Wage Regulations

The Michigan Prevailing Wage for State Projects Act, effective on February 13, 2024, closely resembles a previous prevailing wage regulation repealed in 2018. It mandates that construction workers on state-sponsored or financed projects receive wages and benefits comparable to those in the same locality on similar contracts.

Within the framework of the Act, a “state project” encompasses various construction activities authorized by a contracting agent, which includes new construction, alterations, repairs, installations, and improvements of public buildings, schools, infrastructure, bridges, highways, or roads. Additionally, construction mechanics, defined as skilled or unskilled workers involved in construction projects, must receive wages and benefits meeting or exceeding the prevailing rates established by the state based on union-level standards.

The Act also requires Contractors to enroll apprentices in Department of Labor-approved training Programs and maintain payroll records for at least three years. Future construction contracts must include language ensuring wages and fringe benefits are not lower than established rates, with nondiscrimination and nonretaliation provisions and the right for aggrieved employees to take legal action against contractors for damages or injunctive relief.

The Act applies to projects with bid acceptance dates on or after its effective date, excluding contracts entered before or with bid acceptance dates before this date. Contractors should seek guidance from experienced professionals to help them navigate Prevailing Wage Act issues effectively and minimize the risks and potential penalties linked with non-compliance.

OFCCP Continues and Expands Construction Contractor Reporting

The Office of Federal Contract Compliance Programs (OFCCP) announced in the Federal Register that it is renewing and changing the construction compliance review scheduling letter and the Construction Contract Award Notification Requirement Form (CC-314).

OFCCP is responsible for implementing regulations to prevent employment discrimination by Federal contractors and subcontractors based on race, color, religion, sex, sexual orientation, gender identity, national origin, disability, or status as a protected veteran.

The agency is proposing changes to the construction scheduling letter to increase the effectiveness of its construction compliance evaluations. It also plans to renew form CC-314, which covered construction contractors use to notify the agency when it receives a contract award exceeding $10,000.

Written comments must be submitted in response to the notice on or before April 26, 2024.

SECURE Act 2.0 Implementation Continues

Last spring, The Contractors Plan blog shared a table describing important provisions of the SECURE Act 2.0. Since then, many of the key provisions have taken effect. Some recently, with more in 2025. The SECURE Act 2.0, passed in 2022, is meant to improve access to retirement plans and the ability to save for retirement while also easing employer administration requirements.

In addition to the provisions that took effect before this year, several more elective provisions became available for adoption as of January 1, 2024, including:

• An increase in the cash-out limit to $7,000 from $5,000.
• A new exception from the early withdrawal penalty is created for distributions used for emergency expenses. The limit is $1,000 annually, and the participant can repay the distribution within three years.
• An employer without a retirement plan can offer a starter 401(k) plan with lower contribution limits and simplified requirements.
• Allows participants who self-certify that they experienced domestic abuse to make penalty-free withdrawals. The withdrawal is limited to the lesser of $10,000 or 50% of the vested balance.

These are just some changes that became available in 2024 that could impact your plan. Others are on the horizon for 2025, including:

• For plans created in 2023 or later, there is an auto-enrollment and auto-escalation requirement for 401(k) plans.
• An increase in the catch-up limits to the greater of $10,000 or 50% more than the regular catch-up provision for participants who are 60, 61, 62, or 63 years old. After 2025, the catch-up limits will be indexed for inflation.

These are just some of the SECURE Act 2.0’s recent and upcoming changes. For questions about these and other upcoming plan changes and design features, you may talk with your broker or contact The Contractors Plan about how these changes may impact your plan and its participants.

Biden Administration Issues Executive Orders Advancing Pay Equity

The President has issued two Executive Orders to promote equal pay for federal contractor employees and the federal workforce. To implement these orders, the Biden Administration has introduced measures focused on pay equity and transparency, including proposed revisions to the Federal Acquisition Regulation (FAR). These revisions tackle wage discrepancies by forbidding contractors and subcontractors from requesting or considering applicants’ salary histories for particular roles.

• The FAR Council has suggested a rule that would bar federal contractors and subcontractors from soliciting or considering candidates’ salary histories during recruitment. Comments on the proposed FAR regulation are open until April 1, 2024. If enacted, this regulation would prohibit contractors from using past compensation as a screening factor or basis for salary decisions, regardless of whether applicants provided the information voluntarily. The proposal also includes a mechanism for enforcement, allowing applicants to file complaints against non-compliant contractors or subcontractors, with appropriate actions to be taken by the relevant agency. Furthermore, the proposal requires federal contractors to disclose expected salary ranges in job listings.
• Additionally, the Office of Personnel Management (OPM) has finalized a rule to help ensure that federal agencies will no longer factor in an individual’s current or past pay when determining federal employee salaries. Under the final regulation, federal agencies cannot consider an applicant’s non-federal salary history when setting pay for new employees in the General Schedule, Prevailing Rate, Administrative Appeals Judge, Administrative Law Judge, Senior Executive Service, and senior-level and scientific or professional pay systems. This rule is meant to stop pay discrimination by ensuring that salaries are based on applicants’ skills, experience, and expertise rather than their salary history.

These initiatives aim to promote economy, efficiency, and effectiveness in federal contracting while fostering talent diversity, enhancing job satisfaction, and reducing turnover within the federal contractor workforce. However, the proposed rule raises concerns and uncertainties regarding compliance with existing federal contracting rules. Therefore, contractors are advised to carefully monitor developments, review the full text of the proposed rule, and participate in the notice-and-comment process to ensure their understanding and compliance.

December 2023 Construction Spending; Annual Review

The U.S. Census Bureau announced construction spending for December 2023 was at a seasonally adjusted annual rate of $2,096 billion, 0.9% above the revised estimate of $2,078 billion in November. Compared to last year, construction spending in December was up 13.9%. The overall construction value in 2023 was $1,979 billion, 7% above the total construction spending in 2022.

While private construction spending in December was $1,620 billion, 0.7% above the revised November estimate of $1,608 billion, public construction spending was $476 billion, 1.3 % above the revised November estimate of $470 billion. A key contributor to public construction was highway construction at $151 billion, 4.1% above the revised November estimate of $145 billion.

Compared to the previous year, the value of public construction in 2023 was $438 billion, 16.3% above what was spent in 2022. Again, highway construction was a leading contributor of growth with $134 billion, up 18 % above the $113 billion in 2022.

More information may be found at: https://www.census.gov/construction/c30/pdf/release.pdf.

WHD to Host Newly Expanded Virtual Prevailing Wage Seminars

The Department of Labor’s Wage and Hour Division (WHD) will be hosting virtual compliance seminars on the payment of prevailing wages on federally funded service and construction contracts. These seminars are a component of WHD’s continuous efforts to improve compliance and expand awareness concerning the prevailing federal wage requirements.

This year, the WHD has expanded its seminar offerings for contractors, agencies, unions, workers, and other stakeholders. These day-long seminars will offer sessions on various prevailing wage compliance topics, using breakout rooms so that participants can choose the most valuable sessions.

To attend, participants only need to register for their preferred seminar date; individual session registration is not required. The seminars are scheduled for Feb. 27, May 15, and Aug. 29, 2024, from 11:00 am to 5:30 pm EDT.

The tentative agenda in the registration link below will be updated leading up to each seminar date. While seminar attendance is free, registration is required. Participants may click here to register.

Proposed FAR Amendments: Enhancing Consistency in Suspension and Debarment Procedures for Federal Contractors

The Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA) have jointly proposed amendments to the Federal Acquisition Regulation (FAR) to enhance suspension and debarment consistency. Recommendations from the Interagency Suspension and Debarment Committee prompted these changes. Currently, the FAR and Nonprocurement systems operate independently, leading to variations. The proposed amendments align the FAR more closely with the Nonprocurement Common Rule (NCR).

While the FAR and NCR systems share core principles, there are disparities. The proposed rule introduces definitional changes, including standardized terms like “suspending and debarring official” and “administrative agreement,” aiming to clarify and promote the understanding of alternative measures.

Significantly, the proposed amendments bring substantive, procedural changes to suspension and debarment procedures by introducing seven new aggravating factors to be considered alongside the existing ten mitigation factors. This change aims to enhance consistency between the FAR and NCR, providing additional guidance for officials making contractor responsibility determinations.

The proposed rule also advocates for increased flexibility by expanding communication modes for notices and extending the time frame for a debarment decision from 30 to 45 days, with the possibility of further extensions for good cause. These changes aim to streamline and improve suspension and debarment procedures, aligning the FAR more closely with the NCR while ensuring clarity, consistency, and enhanced flexibility in the process.

Written comments are due on March 11, 2024.

DOL Issues Final Rule on Classifying Workers Under the FLSA

The Department of Labor (DOL) has issued a final rule under the Fair Labor Standards Act (FLSA) to clarify the distinction between employees and independent contractors. The rule aims to enhance employers’ and workers’ understanding of the distinction and reduce employee misclassification.

This issue affects workers’ eligibility for minimum wage and overtime pay, can create an unfair competitive advantage, and generates broader adverse effects on the economy. Acting Secretary of Labor Julie Su emphasizes the rule’s role in protecting workers and ensuring proper classification.

The Final rule seeks consistency for entities covered by the FLSA. The guidance aligns with established judicial precedent and reinstates a multifactor analysis, considering factors such as profit opportunity, financial investment, work permanence, employer control, essentiality of the work, and worker skill.

The new rule rescinds the 2021 Independent Contractor Rule, which was deemed inconsistent with the law. Stakeholder feedback from the 2022 forums and the October 2022 comment period informed the development of the rule. It becomes effective on March 11, 2024.