Business Coalition Urges Congress to Nullify Expansive Joint Employer Rule

Workers erecting a building framework

The Real Estate Roundtable and a coalition of major business groups sent a letter to all members of Congress last week in support of a joint resolution that would nullify a final rule of the National Labor Relations Board (NLRB). The NLRB “joint employer” rule—scheduled to go into effect on Dec. 26—would render employers vulnerable to claims by “indirect” workers who are not immediate hires. The policy has significant implications that could subject parent-level hotel and restaurant companies, other franchise-model businesses, and companies that hire contractors and subs to expansive joint employer liability. (Coalition letter, Nov. 9 and AP, Nov. 13)

Potential Impact

  • The NLRB rule overturns Trump-era policy and returns to an Obama-era position that makes employers liable to workers they do not directly hire or manage. It also holds joint employers liable for workplace issues they do not control, which range from collective bargaining to workplace safety conditions.
  • The Obama-era version—in place from 2015 to 2017—cost small business franchise operators $33 billion per year, according to the International Franchise Association (IFA). It resulted in 376,000 lost job opportunities and led to 93% more lawsuits against these businesses.
  • The Roundtable joined the coalition letter led by IFA and the U.S. Chamber of Commerce. Other real estate group signatories include the American Hotel and Lodging Association (AH&LA), the National Association of Home Builders, the National Multifamily Housing Council, and national general contracting organizations.  

Party Lines in Congress

U.S. Capitol - viewing upward from left
  • The measure could pass the House but is not expected to advance in the Democratically-controlled Senate.

The U.S. Chamber and other business organizations who are signatories on the coalition letter sent last week also filed a lawsuit challenging the joint employer rule on Nov. 9. Unions groups will likely seek to intervene to defend the NRLB rule. (U.S. Chamber case updates)

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New Federal Rules Issued Regarding Real Estate Construction, Clean Energy Projects

Housing Construction WorkerThe Biden administration issued two new rules this week impacting real estate construction and investments in clean energy projects. 

  • Davis-Bacon: The U.S. Labor Department on Tuesday issued a final rule to overhaul Davis-Bacon standards that determine prevailing wages for workers on construction projects covered by a federal contract or financially assisted by federal grants, loans, guarantees or insurance.
    • Construction association AGC issued a statement expressing “preliminary” concerns that “this rulemaking critically missed an opportunity” to inject “more accurate data” in processes to establish prevailing wage rates in local markets across the nation.
    • Laborers and mechanics constructing transportation, energy, water, toxic site clean-ups, and other infrastructure financially supported by the bipartisan Infrastructure Investment and Jobs Act (IIJA) must meet the new Davis-Bacon requirements. (IIJA project map)
    • Inflation Reduction Act (IRA) projects receiving clean energy tax incentives are not required to meet Davis-Bacon rules, but they can qualify for increased credits and deductions if workers are paid prevailing wages. (RER’s IRA fact sheets) 
    Solar installation workers

  • “Bonus” Tax Credits: The Treasury Department and IRS on Thursday released final rules explaining how IRA “bonus credits” can be awarded to solar, wind, and associated storage projects in low-income communities. (The Hill, August 10)
    • Qualifying projects in census tracts eligible for new market tax credits (NMTCs) can receive a 10% solar credit boost, while those supported by low-income housing tax credits or Section 8 rental assistance can receive a 20% solar credit increase. (RER’s IRA “bonus rate” chart)
    • The “bonus” incentives – over “base” rate tax credit amounts – are competitive. Bonuses will be awarded through an application process run by the U.S. Department of Energy scheduled to open this fall.

The Roundtable submitted comments in June when the IRS proposed the “bonus credit” program. (Roundtable Weekly, June 30). It will update its summary of IRA-related agency guidance following analysis of the newly issued rule.

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White House Releases Plans to Battle Inflation and Streamline Infrastructure Permitting; Congressional Leaders Urge Swift Implementation of New EB-5 Law

President Biden on inflation

President Joe Biden this week committed that his administration’s top economic priority is battling inflation. Biden’s efforts to combat rising prices include proposals that would increase taxes on large corporations and the wealthiest Americans – and possibly eliminate Trump-era tariffs on foreign imports. (White House Inflation Plan | News conference video | The Hill, May 10)

  • The Labor Department reported that consumer prices increased 8.3% in April compared to one year ago, as inflation remains near a four-decade high. (Labor Department news release and AP, May 11)
  • Federal Reserve Chair Jerome Powell discussed the Fed’s inflationary goals during an interview this week with Marketwatch, stating, “Whether we can execute a soft landing or not, it may actually depend on factors that we don’t control.” The Fed recently approved the biggest interest hike in 22 years and announced plans for reducing its nearly $9 trillion balance sheet. (CNBC, May 12)
  • Powell also recently stated, “There is a broad sense on the committee that additional 50 basis point increases should be on the table at the next couple of meetings.” He added, “the American economy is very strong, and well-positioned to handle tighter monetary policy.” (Wall Street Journal, May 4)
  • A semi-annual report released this week by the Fed detailed risks to financial stability, pointing to the potential impact of inflation, sharply rising interest rates and the war in Ukraine. The report also flagged a decline in liquidity. “While the recent deterioration in liquidity has not been as extreme as in some past episodes, the risk of a sudden significant deterioration appears higher than normal,” according to the report. (Wall Street Journal, May 9)
  • Powell was approved this week to serve a second term as Fed Chair by a bipartisan Senate vote of 80-19. (Politico, May 12)

Infrastructure Permitting

Infrastructure photo Cleveland

  • The White House this week also unveiled a plan to strengthen and accelerate federal permitting and environmental reviews funded by the Infrastructure Investment and Jobs Act (IIJA) passed last November. (White House Fact Sheet, May 11 and Roundtable Weekly, Nov. 12, 2021)
  • The Biden administration said its Permitting Action Plan will improve environmental reviews to avoid duplicity and will create sector-specific teams aimed at speeding permitting and resolve supply chain issues that hinder construction.

EB-5 Regional Centers

EB-5 and passport

  • Four congressional leaders wrote a bipartisan letter to Homeland Security Secretary Alejandro Mayorkas this week to counter a statement by the U.S. Citizenship and Immigration Services that existing EB-5 regional centers must apply for recertification. The USCIS  statement, if put into effect, would delay regional center enterprises from seeking new foreign investment pending reapproval. (Congressional letter, May 9)
  • The letter was signed by Senate Majority Leader Chuck Schumer (D-NY), House Judiciary Committee Chair Jerrold Nadler (D-NY), and Senate Judiciary Committee members John Cornyn (R-TX) and Lindsey Graham (R-SC). 
  • Their letter clarified that previously existing regional centers are not required to be recertified under the EB-5 Reform and Integrity Act of 2022 passed last March – but the centers must swiftly meet all of the new law’s anti-fraud and homeland security protections. (EB-5 investors blog, May 10)

The Roundtable-supported  EB-5 Reform and Integrity Act was the first significant update to the regional center program since its creation by Congress in the early 1990s. (Roundtable Weekly, March 11, Roundtable news release and EB-5 Fact Sheet)

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Roundtable Discussion with North America’s Building Trades Unions President Sean McGarvey on COVID-19, Racial Inequality, Workforce Training and Infrastructure

Sean McGarvey, above, President of North America’s Building Trades Unions (NABTU) and Roundtable President Jeffrey DeBoer this week discussed compelling issues of importance to CRE and the Trades, including COVID-19 responses, infrastructure investment, racial inequality,  workforce development, infrastructure and capital investment.  (Watch the remote discussion on The Roundtable’s Youtube channel.)

  • NABTU is an alliance of 14 national and international unions in the building and construction industry that collectively represent over 3 million skilled craft professionals in the United States and Canada.
  • DeBoer and McGarvey’s discussed possible ways the two sectors could work constructively together on issues, including:
  • COVID-19.  McGarvey commented on how at the onset of the pandemic outbreak, a large amount of NABTU’s workforce was laid idle.  The unions urgently worked with DHS and state leaders on how the construction industry could remain in business by pursuing guidance with federal agencies such as the Centers for Disease Control and Prevention Centers (CDC).  NABTU’s extensive efforts in funding COVID-19 vaccine research and trials are also recounted. 
  • Nondiscriminatory work environments.  The discussion touched on NABTU’s June 1 statement issued in response to the nationwide protests over racial inequality.  In the remote discussion with DeBoer, McGarvey said, “At this point where people want to compare it to 1968 … its so much different now that I really thing we’re going to get somewhere this time. And the Building Trades when it comes to diversifying our membership … we even have a couple dozen formerly incarcerated programs where we are teaching curriculum inside the state prison system (until Covid came) to prepare people for when they get out to come into our training programs and go to work.”
  • Apprenticeships and training.  “There’s only one institution in the world that trains more people in hard skills than NABTU. That’s the United States military,” McGarvey noted.  The unions and their signatory contractor partners invest over $1.6 billion in private-sector money to fund and operate over 1,900 apprenticeship training and education facilities across North America that produce highly trained, craft workers.  Several Roundtable member companies participate in NABTU workforce programs.
  • Infrastructure. The effectiveness of public-private partnerships in large infrastructure investments was addressed by DeBoer and McGuire.  The two also discussed the difficulty of financing construction projects during the pandemic and how it affects the economic security of the entire industry.  The Roundtable is currently working with policymakers and stakeholders to develop and enact an effective pandemic risk/business continuity program that would add more confidence to the marketplace while a health solution is vigorously pursued on the medical front.
  • Capital investment strategies.  NABTU has interests in nearly $700 billion of capital investments and assets that include funds focused on pensions, commercial real estate development, infrastructure and other investment.   “We are about partnerships,” McGarvey noted. “We are partnered with public pension funds who see it like us … who want a minimum amount of standards of who they are going to lend to and who they are going to invest with.  So you take our nearly $700 billion … we are thinking that in about 3 years we’ll be up to about $3 trillion worth of pension fund money that’s going to have minimum requirements.”    

The remote discussion concluded on a positive note about exploring possible ways The Roundtable and NABTU could work together on mutually beneficial issues.

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U.S. Labor Department Adopts “Joint Employer” Rule, Returns to “Direct and Immediate Control” Standard

DOL logo x475

The Labor Department on Jan. 12 released its final “joint employer” rule, returning to a standard where businesses can only be held responsible for workplace violations and collective bargaining obligations regarding workers over which they have “direct and immediate” control.  (Final Rule, Federal Register and Fact Sheet, Dept. of Labor).

  • This week’s rule takes effect on March 16.  It upholds a federal labor standard that was in effect for more than thirty years, before it was upended by a National Labor Relations Board (NLRB) decision in 2015. 
  • That 2015 NLRB decision instituted an expansive interpretation of workplace relationships, where employees hired by a local franchise operator (or subcontractor) could also be considered an employee of the “parent” company (or general contractor) that had no role in hiring decisions.  The new regulation revives the long-standing rule that two separate employers are considered “joint employers” only where they both have “direct and immediate control” over hiring standards, employment terms and working conditions. 

  • In practical terms, the Jan. 12 rule means that a local franchisee remains obligated to sit down and negotiate with unionized employees – but the remote franchisor company that never hired the workers has no collective bargaining responsibilities to them.  Similarly, a subcontractor that commits workplace safety violations is responsible to its laborers, but a general contractor is not similarly responsible unless it has “direct and immediate” control over job site conditions.

  • Advocacy over the joint employer rule has spanned the Obama and Trump Administrations.  For example, as part of a broad multi-industry coalition, The Roundtable wrote to congressional leaders back in 2017 about the harm to businesses caused by the NLRB’s Obama-era position, essentially advocating for the Labor Department’s rule handed down this week. (See past Roundtable Weekly stories – March 2, 2018 / Dec. 15, 2017 / Nov. 10, 2017 / Sept. 11, 2015)

  •  On Jan. 12, DOL Secretary Eugene Scalia and White House Chief of Staff Mick Mulvaney wrote in the Wall Street Journal about the new joint employer rule.

“The new rule also gives companies in traditional contracting and franchising relationships confidence that they can demand certain basic standards from suppliers or franchisees—like effective antiharassment policies and compliance with employment laws—without themselves being deemed the employer of the other company’s workers. That will help companies promote fair working conditions without facing unwarranted regulatory costs,” according to the two Trump Administration officials. (Wall Street Journal, Jan. 12)

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