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On July 10, in a huge win for SMART members, the Department of Labor issued a memo stating that workers who perform testing, adjusting and balancing (TAB) work on HVAC systems that are involved in the construction, alteration and/or repair work on Davis-Bacon Act projects are entitled to prevailing wage coverage. This ensures ALL construction workers, including TAB technicians, get the pay they deserve, reversing decades of DOL interpretations that excluded TAB technicians from coverage.

“For far too long, the workers who perform testing, adjusting and balancing — crucial work that has only risen in profile since the COVID-19 pandemic — have been prevented from earning the prevailing wages they earned on projects covered by the Davis-Bacon Act,” said SMART General President Michael Coleman. “That ends now. This extremely important memo demonstrates how President Biden and his Department of Labor are working directly with SMART to make sure construction workers are paid in a way that corresponds to their essential labor.”

The July 10 All-Agency Memorandum (AAM) noted that workers performing TAB duties generally are considered “laborers or mechanics” within the meaning of the Davis-Bacon and Related Acts (DBRA) because TAB work generally involves duties that are primarily “manual or physical” in nature. The DOL notes, in the AAM, that TAB work has “traditionally been performed” by workers in the “sheet metal” trade. 

Some highlights of the AAM:

Coverage of all TAB work on a DBRA site prior to completion

Where manual or physical activities such as TAB HVAC work are performed at the DBRA-covered site during the construction or renovation of a building or work — and where they precede the acceptance of the completed building or work — those activities are subject to Davis-Bacon coverage.

Coverage of all TAB work that is “directly related and integral” to “contemplated” construction

Davis-Bacon labor standards may also be applicable where a contract calling for testing HVAC system functionality is a necessary but preliminary component of a contemplated federal or federally assisted repair or rehabilitation project — even when the testing work is in a separate contract, as a project consists of all construction necessary to complete the building or work, regardless of the number of contracts involved (so long as all contracts awarded are closely related in purpose, time and place). Where DBRA-covered HVAC system construction, alteration and/or repair work is already contemplated, contracts for testing work to identify HVAC repairs, renovations or replacements that may be needed for such projects will generally be considered directly related and integral to the project, and thus subject to the Davis-Bacon labor standards.

Coverage of all TAB work on “operations and maintenance” contracts when the task order or purchase order is “closely related and integral” to construction, alteration or repair work

To the extent that a task order or purchase under an “operation and maintenance” contract is for construction, alteration or repair of a building or work, including an HVAC system — or involves TAB work that is closely related and integral to construction, alteration or repair work that is already contemplated — Davis-Bacon labor standards would typically apply to the order. Examples of operations and maintenance contracts include contracts at military bases, Department of Energy sites and other large federal facilities.

Finally, the AAM clarifies the circumstances under which TAB work is not covered under the DBRA, such as when: 1) it is performed under federal contracts for “routine, scheduled maintenance or servicing of HVAC systems;” 2)  it is “uncertain” whether any “future” construction, alterations or repairs will take place at the location; or 3) a contract is “solely for inspection (i.e., testing) of HVAC installation or rehabilitation work.”

On Tuesday, January 9, the United States Department of Labor (DOL) issued its final rule to help workers and employers better understand how to analyze who is an employee or independent contractor under the Fair Labor Standards Act (FLSA). This rule will make it harder for companies to misclassify workers, expanding access to employee protections such as overtime pay, Social Security benefits and more. In response, SMART issued the following statement:

“Unions like SMART have long fought against the sordid practice of worker misclassification in the construction industry, where bad-faith companies categorize their workers as independent contractors in order to deprive them of the protections, benefits and pay they deserve – including minimum wage, overtime pay and workers’ compensation. This anti-worker practice has been particularly harmful to immigrants and members of underrepresented communities. The final rule issued by the DOL today will protect tens of thousands of workers across the country, and all of us at SMART applaud Acting Labor Secretary Julie Su and the Biden administration for taking action.” 

On August 8, United States Vice President Kamala Harris and Acting Secretary of the Department of Labor (DOL) Julie Su announced the publication of a rule that updates the Davis-Bacon and Related Acts, strengthening prevailing wage regulations and raising pay standards for SMART members and building trades workers across America. Among other provisions, the updated regulations would restore the DOL’s definition of prevailing wage – making it equivalent to the wage paid to at least 30% of workers in local communities (rather than the weakened 50%) – strengthen enforcement and modernize DOL’s definition of “site of the work” to account for current industry practices. It is expected to raise wage standards for more than one million construction workers.

In response, SMART General President Michael Coleman released the following statement:

“SMART commends the Biden administration and Acting Labor Secretary Julie Su for following through on their promise to our members. By updating Davis-Bacon prevailing wage regulations for the first time in more than 40 years, the Department of Labor is working to ensure that construction workers employed on public works projects are paid what they deserve, helping lift more workers into the middle class and boosting the economies in cities, towns and neighborhoods from coast to coast. This is especially vital as projects funded by the Bipartisan Infrastructure Law, the CHIPS and Science Act and the Inflation Reduction Act continue breaking ground – putting thousands of SMART members to work.

“It’s no coincidence that this announcement arrives just days after Acting Secretary Su joined us at our 2023 SMART Leadership Conference. This is an administration that understands the importance of putting working families first. The gutting of the Davis-Bacon Act under the Reagan administration set us back for decades – now, with this long-overdue update, we can finally ensure that the women and men building our nation receive fair compensation. We thank the Department of Labor and the Biden administration for their continued commitment to SMART members and workers everywhere.”

Former Secretary of Labor Marty Walsh (left) and Deputy Labor Secretary Julie Su.
Former Secretary of Labor Marty Walsh (left) and Deputy Labor Secretary Julie Su. No official affiliation with or endorsement from the Department of Labor. Photo Credit: Department of Labor Alyson Fligg

From trafficked garment workers to misclassified truck drivers, from future union apprentices to business owners who abide by the law, the record is clear: Current Deputy Labor Secretary Julie Su is the right choice to lead the U.S. Department of Labor. She has a proven track record of acting on working families’ behalf – not just talking the talk – dating back to her days as a human rights lawyer.

Su began her career as an attorney working for a small nonprofit called the Asian Pacific American Legal Center, where she made headlines for a groundbreaking federal lawsuit filed on behalf of 72 Thai garment workers who were forced to work 18 hours a day in sweatshop conditions in El Monte, California. The lawsuit resulted in more than $4 million in restitution for the workers; it also kickstarted Su’s career-long dedication to fighting against wage theft and worker exploitation.

“For decades Julie Su has fought tirelessly for the rights of working people, from her time as a civil rights attorney, to her tenure as California labor secretary, to her current position as United States deputy secretary of labor,” SMART General President Joseph Sellers remarked at the time of Su’s nomination for labor secretary. “No matter her title or role, Su works to ensure safer workplaces and stronger protections for all.”

Su’s time as labor commissioner and then labor secretary of California demonstrates her commitment to fighting on behalf of SMART members and workers everywhere. She worked diligently to expand apprenticeship programs for California workers who chose not to attend college, and her relentless crusade against wage theft – including California’s “Wage Theft Is a Crime” campaign – led to countless workers receiving the pay they deserve. (It also rewarded employers who follow the law by cracking down on those who would exploit their way to bigger profits.) Su also recognized the pervasive, anti-worker threat posed by misclassification, filing suits against employers who categorized workers as independent contractors and deprived them of better pay, benefits and the ability to form a union.

“Workers of all walks of life have benefited from her advocacy, particularly her fierce struggle against worker misclassification and wage theft – two issues that are rampant in the construction industry,” Sellers added.

As much as Su has focused on enforcing labor laws and holding bad-faith employers accountable, she has done just as much to expand opportunities and position the working class for a favorable future. As leader of California’s Future of Work Commission, Su spearheaded the state’s initiative to ensure workers come first in the face of future technology and policy developments. And most recently, Su worked as former Secretary of Labor Marty Walsh’s right hand in spurring record job growth, nullifying the Industry Recognized Apprenticeship Programs (IRAPs) scheme, investing in registered apprenticeships and pursuing pro-labor policies that protect workers from issues like heat exposure and create good, family-sustaining, union jobs. Her emphasis on the union apprenticeship model is one that, once she is confirmed as secretary of labor, could benefit SMART for generations.

Deputy Labor Secretary Julie Su delivers remarks after her nomination to lead the Department of Labor by President Biden.
President Joe Biden looks on as Deputy Labor Secretary Julie Su delivers remarks on her nomination as Secretary of Labor, Wednesday, March 1, 2023, in the East Room of the White House. (Official White House Photo by Adam Schultz)

“Registered apprenticeship is one of the innovative and time-tested superhighways in the workforce development infrastructure, particularly for communities who have been excluded from good jobs for far too long,” Su said in 2022.

With Su and Walsh at the head of the Department of Labor, the United States’ economy experienced unprecedented growth, including the addition of 12.6 million jobs and the lowest unemployment rate in 50 years. This success, as well as years of working with employers and employees alike to pursue mutual prosperity, has led to Su’s nomination being endorsed by business groups like Small Business Majority and the Los Angeles Chamber of Commerce, as well as labor unions like SMART, North America’s Building Trades Unions, the United Mine Workers of America, the International Association of Fire Fighters, the International Brotherhood of Electrical Workers and many more.

“She has demonstrated her willingness to stand with workers and SMART members since joining the Department of Labor, helping spearhead this administration’s focus on building an economy from the bottom up and the middle out,” Sellers concluded in his statement. “We look forward to working with her to advance the interests of our members and the working class, and we urge the Senate to swiftly confirm Julie Su as United States secretary of labor.”

On February 28, President Biden announced his intent to nominate current Deputy Secretary of Labor Julie Su to serve as secretary of the U.S. Department of Labor. In response, SMART issued the following statement:  

“For decades Julie Su has fought tirelessly for the rights of working people, from her time as a civil rights attorney, to her tenure as California labor secretary, to her current position as United States deputy secretary of labor. Workers of all walks of life have benefited from her advocacy, particularly her fierce struggle against worker misclassification and wage theft – two issues that are rampant in the construction industry.   

“No matter her title or role, Su works to ensure safer workplaces and stronger protections for all. She has demonstrated her willingness to stand with workers and SMART members since joining the Department of Labor, helping spearhead this administration’s focus on building an economy from the bottom up and the middle out. We look forward to working with her to advance the interests of our members and the working class, and we urge the Senate to swiftly confirm Julie Su as United States secretary of labor.”   

The U.S. Department of Labor Women’s Bureau appointed SMART Local 28’s Leah Rambo as deputy director of its executive team in early February. In response, SMART issued the following statement:

“The U.S. Department of Labor’s Women’s Bureau does important work lifting up our sisters who strengthen our economy, our industry and our union – and promoting diversity, equity and inclusion across the trades. We celebrate the Bureau’s appointment of Leah Rambo from SMART Local 28 (New York City) as a deputy director on its executive team. As the director of training for Local 28 and a member of our SMART International Women’s Committee, Leah has worked tirelessly to recruit and retain an increasing number of women and ensure safe, quality work and training environments.

“Thanks to unprecedented investments in our infrastructure, megaprojects continue to come in across the country. We all have a responsibility to make sure women in our communities have access to the good, family-sustaining union jobs and the benefits our union and industries provide. We know Leah will be a dedicated advocate in the efforts to expand opportunities for women and their families.”

On September 23, the United States Department of Labor (DOL) announced a final rule to rescind the Industry-Recognized Apprenticeship Program (IRAP), and will instead direct the department’s resources toward support of registered apprenticeships. The DOL issued this final rule after reviewing IRAPs as required by Executive Order 14016, in which the current president directed federal agencies to consider rescinding “any orders, rules, regulations, guidelines, or policies” implemented by the previous president’s Executive Order 13801, which promoted IRAPs and would have undermined union registered apprenticeship programs such as those in the sheet metal industry.

SMART General President Joseph Sellers commented in response that “SMART commends the Department of Labor for following through on President Biden’s executive order and recognizing the IRAP initiative for what it was: a bad faith attempt by anti-union contractors and politicians to undermine high-quality union apprenticeship programs and replace them with a watered-down system of certifications.” GP Sellers added that “by rescinding IRAPs and investing instead in registered apprenticeship programs, the Department of Labor has ruled in favor of workers and their ability to find good, union jobs and reliable pathways to the middle class.”

The Final Rule was published in the Federal Register on September 26, 2022 and will go into effect on November 25, 2022. Beginning on the effective date, DOL will no longer recognize Standards Recognition Entities (SREs) or IRAPs.

WASHINGTON, DC – The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) today announced an interim enforcement response plan for the coronavirus pandemic. The response plan provides instructions and guidance to OSHA area offices and compliance safety and health officers (CSHOs) for handling coronavirus-related complaints, referrals and severe illness reports.

During the coronavirus outbreak, OSHA area offices will utilize their inspection resources to fulfill mission essential functions and protect workers exposed to the disease. The response plan contains interim procedures that allow flexibility and discretion for field offices to maximize OSHA’s impact in securing safe workplaces in this evolving environment.

“OSHA is committed to protecting the health and safety of America’s workers during this challenging time in our nation’s history,” Principal Deputy Assistant Secretary Loren Sweatt said. “Today’s guidance outlines commonsense procedures for investigating complaints related to the coronavirus, while also ensuring the safety of workers, employers and inspectors.”

The response plan outlines procedures for addressing reports of workplace hazards related to the coronavirus. Fatalities and imminent danger exposures related to the coronavirus will be prioritized for on-site inspections. The response plan contains procedures and sample documentation for CSHOs to use during coronavirus-related inspections. Workers requesting inspections, complaining of coronavirus exposure or reporting illnesses may be protected under one or more whistleblower statutes and will be informed of their protections from retaliation.

This memorandum will take effect immediately and remain in effect until further notice. It is intended to be time-limited to the current public health crisis. Check OSHA’s webpage at www.osha.gov/coronavirus frequently for updates.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to help ensure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance. For more information, visit www.osha.gov.

The mission of the Department of Labor is to foster, promote and develop the welfare of the wage earners, job seekers and retirees of the United States; improve working conditions; advance opportunities for profitable employment and assure work-related benefits and rights.

WASHINGTON, D.C. – The U.S Department of Labor’s Occupational Safety and Health Administration (OSHA) is reminding employers that it is illegal to retaliate against workers because they report unsafe and unhealthful working conditions during the coronavirus pandemic. Acts of retaliation can include terminations, demotions, denials of overtime or promotion or reductions in pay or hours.

“Employees have the right to safe and healthy workplaces,” said Principal Deputy Assistant Secretary Loren Sweatt. “Any worker who believes that their employer is retaliating against them for reporting unsafe working conditions should contact OSHA immediately.”

Workers have the right to file a whistleblower complaint online with OSHA (or 1-800-321-OSHA) if they believe their employer has retaliated against them for exercising their rights under the whistleblower protection laws enforced by the agency.

OSHA’s Whistleblower Protection Program webpage provides valuable resources on worker rights, including fact sheets on whistleblower protections for employees in various industries and frequently asked questions.

OSHA enforces the whistleblower provisions of more than 20 whistleblower statutes protecting employees from retaliation for reporting violations of various workplace safety and health, airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, motor vehicle safety, healthcare reform, nuclear, pipeline, public transportation agency, railroad, maritime, securities and tax laws. For more information on whistleblower protections, visit OSHA’s Whistleblower Protection Programs webpage.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to help ensure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance. For more information, visit www.osha.gov.

The mission of the Department of Labor is to foster, promote and develop the welfare of the wage earners, job seekers and retirees of the United States; improve working conditions; advance opportunities for profitable employment; and assure work-related benefits and rights.

Due to the ongoing disruptions caused by the coronavirus (COVID-19), the Department of Labor’s Office of Labor-Management Standards (OLMS) updates its March 17, 2020, advisory concerning Title II of the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA).
Unions, employers, and labor relations consultants wishing to take advantage of this enforcement policy do not need to contact OLMS before the report is due, providing the requested information. Rather, OLMS will not pursue a civil enforcement action with regard to a delinquent or deficient report when these reporting violations are attributable to COVID-19 and the reporting deadline was prior to June 30, 2020. Any such reports must be filed by June 30, 2020, absent further notice from OLMS.

Related story:

DOL OLMS issues release concerning union elections and mandatory LM reporting amid COVID-19