News from associated
builders and contractors

With President Joe Biden’s term concluding on January 20, 2025, court decisions on outstanding legal challenges will determine the fate of the administration’s final rulemakings and the construction industry’s future operating environment. Five legal challenges filed by Associated Builders and Contractors await determinations, while federal courts have already vacated two rulemakings with significant impact on the construction industry.

FEDERAL ACQUISITION REGULATORY COUNCIL

Use of Project Labor Agreements for Federal Construction Projects: On March 28, 2024, ABC and its Florida First Chapter filed a complaint in the U.S. District Court for the Middle District of Florida, Jacksonville Division, challenging President Biden’s legal and constitutional authority to impose Executive Order 14063 and the corresponding Use of Project Labor Agreement final rule issued by the FAR Council. The mandate, which went into effect on January 22, 2024, requires the use of PLAs on federal construction projects valued at $35 million or more. ABC and a diverse coalition of construction industry stakeholders and taxpayer watchdogs will continue to oppose this anti-competitive and inflationary final rule and instead promote policies that welcome fair and open competition from all contractors to ensure the best value possible for taxpayer investments.

U.S. DEPARTMENT OF LABOR

Updating the Davis-Bacon and Related Acts Regulations: On November 7, 2023, ABC and its Southeast Texas chapter filed a challenge to the Wage and Hour Division’s Davis-Bacon final rule in the U.S. District Court for the Eastern District of Texas, asserting the regulation unlawfully expands coverage of prevailing wage requirements onto new projects and industries and increases the regulatory burden on small construction contractors working on federal and federally funded contracts.

Employee or Independent Contractor Classification Under the Fair Labor Standards Act: ABC, its Southeast Texas Chapter and a coalition of business groups await a decision from the U.S. District Court for the Eastern District of Texas on whether the Biden administration’s 2024 final rule on worker classification under the FLSA complies with the Administrative Procedure Act.

Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees: On May 22, 2024, ABC and a coalition of business groups filed a lawsuit in the U.S. District Court for the Eastern District of Texas, against the WHD’s overtime rule, asserting DOL exceeded its authority by setting the minimum salary threshold too high, effectively making a worker’s duties irrelevant to the classification analysis.

Worker Walkaround Representative Designation Process: On May 21, 2024, ABC joined the U.S. Chamber of Commerce and a coalition of business groups in filing a lawsuit in the U.S. District Court for the Western District of Texas against the Occupational Safety and Health Administration’s worker walkaround rule.

JUDICIAL DETERMINATIONS

While the above-mentioned lawsuits remain pending as of the time of this article’s writing, ABC saw victories against Biden-Harris regulations in 2024. Specifically, the U.S. District Court for the Eastern District of Texas vacated the National Labor Relations Board’s Joint Employer final rule in March. The NLRB decided not to appeal this decision. In addition, the U.S. District Court for the Northern District of Texas blocked the Federal Trade Commission from implementing its rule to ban noncompete agreements. The FTC has appealed the decision to the 5th Circuit in October.