President Biden Nominates Julie Su for Labor Secretary

President Biden has nominated Julie Su to serve as the Secretary of the Department of Labor (DOL). Since 2021, Su has served as the Deputy Secretary of Labor and has been called a “champion for workers” and is expected to advance Biden’s vision of a resilient and inclusive economy with worker well-being at its core. If confirmed, Su will become the first Asian American to join Biden’s cabinet at the rank of Secretary.

Before joining the DOL, Deputy Secretary Su served as the California Labor and Workforce Development Agency Secretary. There she worked closely with unions and employers to build partnerships to connect people to union jobs.

The Senate must confirm Su, where she has the backing of the Congressional Asian-Pacific American Caucus and the Congressional black caucus. However, her confirmation could still be contentious as she is facing opposition from republicans who are citing her role in crafting state law AB5 that classifies some contract workers as employees. Critics say AB5 severely restricts businesses’ ability to hire freelancers.

OSHA Seeks Public Comments on Modernizing Program that Recognizes Employers Committed to Best Safety, Health Practices

The Occupational Safety and Health Administration (OSHA) has announced that it invites the public and workplace safety stakeholders to share their comments regarding the best way to encourage employers and honor those who commit to workplace safety and health.

By opening the program to public comments, OSHA seeks input from all viewpoints to assist the agency as it modernizes and enhances its Voluntary Protection Program (VPP) and continues to promote the use of workplace safety and health management systems.

Through a series of questions to elicit practical responses, OSHA is seeking input regarding such issues as:

• Aligning the VPP more closely with current occupational practices and standards.
• Finding resources and tools that could expand the VPP’s capacity.
• Identifying any categories of hazards that may need special attention in the VPP certification process.

The deadline for comments is April 14, 2023. Those interested should submit comments and attachments, identified by Docket No. OSHA-2022-0012, using the Federal e-Rulemaking Portal.

WHD To Host Virtual Prevailing Wage Seminars

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

The seminars are intended for contractors, agencies, unions, workers, and other stakeholders who will have access to training videos on various Davis-Bacon and Service Contract Act (SCA) compliance topics. Additionally, there will be an opportunity to participate in corresponding virtual Question & Answer sessions with WHD staff.

These Q&A Sessions will be offered live on several dates throughout the year to accommodate participants’ schedules. The dates for the Davis-Bacon-specific topic will be March 8, June 27, and September 13, 2023. The SCA-specific Q&A sessions will be on March 9, June 28, and September 14, 2023.

The seminar attendance is free; however, registration is required. Participants may register at https://www.eventbrite.com/e/2023-department-of-labor-prevailing-wage-seminars-tickets-519169428737?aff=ebdsoporgprofile

December 2022 Construction Spending; Annual Review

The U.S. Census Bureau announced construction spending for December 2022 was at a seasonally adjusted annual rate of $1,809 billion, 0.4% below the revised estimate of $1,817 billion in November. Compared to last year’s same period, construction spending in December was up 7.7%. The overall value of construction in 2022 was $1,793 billion, 10.2% above the total construction spending in 2021.

While private construction spending in December was $1,427 billion, 0.4% below the revised November estimate of $1,433 billion, public construction spending was $383 billion, 0.4 % below the revised November estimate of $384 billion. However, the one strong contributor to public construction was highway construction at $117.3 billion, 1.1% above the revised November estimate of $116 billion.

Compared to the previous year, the value of public construction in 2022 was $364 billion, 4.8% above what was spent in 2021. Again, highway construction was a leading contributor of growth with $109 billion, up 8.6 % above the $100.2 billion in 2021.

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

Federal Trade Commission Issues NPRM To Ban Noncompete Clauses

The Federal Trade Commission (FTC) has issued a notice of proposed rulemaking (NPRM) that bans employers from imposing noncompete clauses on their workers. The NPRM is based on preliminary studies that find noncompetes create an unfair method of competition, therefore, violating Section 5 of the Federal Trade Commission Act.

Noncompete agreements are widespread and can block the creation of new businesses and suppress wages. The NPRM would prohibit new and existing noncompete clauses to address these issues.

The NPRM would apply to independent contractors and anyone who works for an employer, whether paid or not. The FTC estimates that the NPRM could help increase wages by nearly $300 billion annually and expand career opportunities for about 30 million American workers.

The public is invited to submit comments regarding the NPRM by March 10, 2023. After this, the FTC will issue a final rule that will include changes based on the comments received and any further analysis of this issue.

White House Issues Memo Strengthening Support for Federal Contract Labor Practices

The White House has issued memorandum M-23-08 requiring all federal agencies to formally designate a labor advisor whose role will ensure government contracts comply with federal employment laws. This comes in response to the White House Task Force on Worker Organizing and Empowerment (Task Force) report recommending strengthening federal contractor employment and labor practices.

The memorandum guides agencies on the Task Force’s recommendation to designate labor advisors in all federal agencies and to provide more coordination and training among agency labor advisors. These labor advisors would help to improve implementation and uniform compliance with contract labor law requirements for Federal contracts.
The objective is for labor advisers to help agencies prevent employment violations that can result in costly lawsuits, back pay, and erosion of trust in the federal procurement system. Labor advisors will have many roles, including helping promote federal workforce understanding of longstanding labor laws such as the Service Contract Act (SCA), Davis-Bacon Act (DCA), and the Fair Labor Standards Act (FLSA).

The Department of Labor and the Office of Federal Procurement Policy within the Office of Management and Budget (OMB) will establish and jointly manage the agency labor advisers, known as the Contract Labor Advisor Group (CLAG). The CLAG is expected to focus training on non-displacement and project labor agreements to support their implementation.
At this time, the OMB and DOL are asking Agencies to designate at least one career employee as a labor adviser by Feb. 15.

NY State Has New Registration System Enforcing Labor Laws

The State of New York has recently signed legislation establishing a new registration system for all contractors and subcontractors engaged in public work and covered private projects to enforce existing labor laws better. As a result, any contractors planning to bid on covered projects should know they must register with the NY Department of Labor (NYDOL) beforehand.

This new law creates a registration system that allows the NYDOL to vet the contractor to see if they had any previous labor law violations, including prevailing wage, and ensure that only responsible contractors are approved to bid on New York covered projects. The intent is to ensure transparency, reduce fraud, and ensure taxpayers’ money goes only to contractors who treat their employees well.

Under this new law, a contractor must register with the NYDOL by providing a series of disclosures about their businesses every two years. This legislation is now in effect. Details may be found at https://www.nysenate.gov/legislation/bills/2021/S5994.

November 2022 Construction Spending

The U.S. Census Bureau announced construction spending for November 2022 was at a seasonally adjusted annual rate of $1,807 billion, 0.2% above the revised estimate of $1,803 billion in October. Compared to the same period last year, construction spending was up 8.5%. During the first eleven months of 2022, spending amounted to $1,658 billion, up 10.5% above the same period in 2021.

While private construction spending in November was $1,426 billion, 0.3% above the revised October estimate of $1,422 billion, public construction spending was $381 billion, just 0.5% below the revised October estimate of $382 billion, with education construction as the primary contributor at $81.3, which is just 0.1% above the previous month. However, compared to last year’s period, public construction spending is up 10% from $345 last November.

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

Treasury & IRS Issues Guidance on Wage and Apprenticeship Requirements for Enhanced Tax Benefits

The Treasury Department (Treasury) and Internal Revenue Service (IRS) have released Notice 2022-61 which provides taxpayers with information on how to satisfy the prevailing wage and apprenticeship requirements for enhanced tax benefits under the Inflation Reduction Act (IRA).

When created, the IRA devised several new standards and revised tax incentives to promote clean energy projects. Among the incentives, Congress required that taxpayers meet prevailing wage and apprenticeship standards in constructing a project to foster job growth in the energy section. This Notice helps establish the initial guidance needed for implementing the IRA.

The Notice guides how taxpayers, such as contractors, builders, developers, and owners of clean energy facilities, receive the deduction amounts or increased tax credits by satisfying the wage and apprenticeship requirements. The guidance includes examples of what constitutes a prevailing wage and the determination of qualified apprenticeships.

This Notice also serves as the published guidance establishing the 60 days described in those provisions of the Code concerning prevailing wage and apprenticeship requirements. This Notice affects construction or installation, which begins on or after January 30, 2023.

This is a link to the Notice; https://www.govinfo.gov/content/pkg/FR-2022-11-30/pdf/2022-26108.pdf  The Treasury and the IRS anticipate issuing other guidance and proposed regulations concerning the prevailing wage and apprenticeship requirements.

Notice of Minimum Wage Rate Change for Federal Contracts in January 2023

The U.S. Department of Labor, Wage and Hour Division (WHD) announced a minimum wage increase for workers performing work on or in connection with federal contracts covered by Executive Order (E.O.) 14026, Increasing the Minimum Wage for Federal Contractors. This rate change is effective January 1, 2023, increasing the minimum wage for covered employees to $16.20 per hour.

President Biden issued E.O. 14026, which raised the hourly minimum wage to $15.00 per hour, beginning on January 30, 2022, with annual adjustments planned for inflation after that in amounts determined by the Secretary of Labor.

Currently, workers working on covered federal contracts are paid a minimum wage of $15.00 per hour. By January 30, 2023, all agencies must implement the $16.20 minimum wage into all new contract solicitations. Additionally, agencies must implement the new higher rate into existing contracts when parties exercise their option to extend.