Legislative Newsletter - October 2023

Above: ABC 1st Vice Chair Brian Martinenza, Delaware Speaker of the House Rep. Val Longhurst, ABC Delaware former Chair and ABC National Regional Vice Chair Lorri Grayson and 2023 ABC Delaware Chairman Jeromy Newtown following the October 30 Pancakes & Politics.

Speaker Longhurst Addresses Members

Valerie Longhurst, Delaware's Speaker of the House of Representatives spoke to ABC members this morning about issues that will be debated in the upcoming General Assembly session. She noted that issues this year will include mental health counselors in high schools, affordable housing, capital budget and state operating budget.

Longhurst was elected as the first female Speaker of the House in June. Previously she served as the Majority Leader since 2012.

"We appreciate Speaker Longhurst joining us this morning to update our members on issues that will be discussed in Dover next year," said Jeromy Newton, 2023 ABC Chair. "We look forward to working with her and the rest of the General Assembly in the upcoming session on issues affecting our industry, companies and employees."

Above: ABC Delaware 2023 Chairman Jeromy Newton displaying the proclamation during the annual Planning Conference with Careers in Construction Committee Co-Chairs Jimmy Strusowski (left) and Kevin Woodland (right).

Governor signs Proclamation for Careers in Construction month

Governor John Carney recently signed a proclamation declaring October as Careers in Construction month. Careers in Construction Month is celebrated annually to increase public awareness of and appreciation for all the construction craft professionals and their contributions to the State of Delaware.


"The construction industry is one of the nation's largest industries with more than 5 million crafts people nationally," said ABC Delaware President Ed Capodanno. "Here in Delaware our industry will need 1.9 million new crafts people by 2025. We need to spread the word about the excellence careers in construction. Our craft professionals play a critical role in the development of the state. Without them, we wouldn't be where we are today."

Legislation proposed for changes to Delaware Contractor Registry

ABC was sent proposed legislation that will add liability to General Contractors/Construction Managers for the use of subcontractors and their registration on the Delaware Contractor Registry. For a copy of the proposed legislation, please click here. This is a substitute to Senate Bill 118 that was introduced in session last year.

ABC sent comments to the Delaware Department of Labor with concerns around additional liability for General Contractors/Construction Managers. Here are ABC thoughts and possible changes to the legislation.

This should be amended as 3609(c) “A contractor who contracts directly with or uses a subcontractor who is not registered under this chapter may be held jointly liable for the subcontractor’s failure to register regardless of whether or not the violation falls under subsection (a) or (b) of this section.”

 ABC prefers that DOL take out “or uses” because this should be limited to who you contract with. The reason we struck the end is because the sub can have their license suspended for failing to register, lying on the application, refusing to cooperate with an investigation etc. If DOL makes the GC jointly liable it should only be for using a sub that isn’t registered. If you make the GC liable for any violation of the section, then the GC would be jointly liable if the sub lied on the application, which then makes the GC have to do DOL’s job and audit the registration application. Likewise, the GC shouldn’t be jointly liable if the sub refuses to cooperate, because that’s something beyond the GC’s control. 

If you have additional comments, you would like ABC to share after reviewing the legislation, please email ecapodanno@abcdelaware.com . We will keep you updated on the progress of this legislation.

Survey: 98% of ABC Contractors Concerned Inflation Reduction Act Limits Competition—Submit Comments by Oct. 30

survey of ABC contractor members conducted in October 2023 showed that 98% of respondents said controversial prevailing wage and government-registered apprenticeship policies imposed by the Inflation Reduction Act will make them less likely to bid on clean energy projects. The survey gauged ABC members’ responses to a proposed rule issued by the Internal Revenue Service on Aug. 29 that would implement these requirements.

ABC issued a press release on the survey results, stating: “The concerns expressed by the overwhelming majority of respondents indicate that the proposed rule fails to provide much-needed regulatory certainty and will ultimately cause unnecessary cost increases and delays to America’s clean energy projects,” said ABC Vice President of Regulatory, Labor and State Affairs Ben Brubeck. “Stakeholders seeking enhanced IRA tax incentives conditioned on meeting controversial prevailing wage and government-registered apprenticeship programs are sending a clear message that more clarity is required for the IRA to deliver on promised benefits.”

ABC will be submitting comments to the IRS by Oct. 30 in response to the proposed rule and is ready to assist members interested in submitting comments by providing a customizable template. ABC members can reach out to Michael Altman at altman@abc.org to receive the template.

The Inflation Reduction Act was signed into law on Aug. 16, 2022, and provides over $270 billion in tax incentives for the construction of solar, wind, hydrogen, carbon sequestration, electric vehicle charging stations and other clean energy projects.

However, this is conditioned on requirements that project contractors meet prevailing wage and apprenticeship requirements. Developers/taxpayers must ensure that contractors pay all construction workers prevailing wages and benefits set by the U.S. Department of Labor via the Davis-Bacon Act. Developers must also ensure that contractors utilize apprentices enrolled in government-registered apprenticeship programs for certain percentages of all construction hours worked on a project (12.5% of all work hours in 2023 and 15% of all work hours in 2024 and thereafter), among other requirements.

For more information on the proposed rule and other IRA requirements, visit abc.org/ira.

Changes to Davis-Bacon Prevailing Wage Regulations Now in Effect

On Oct. 23, the U.S. Department of Labor’s final rule, Updating the Davis-Bacon and Related Acts Regulations, officially took effect. The regulation imposes drastic revisions to previous rules regarding government-determined prevailing wage rates that must be paid to construction workers on federal and federally assisted construction projects funded by taxpayers.

ABC issued a statement opposing the new rule, stating: “This is yet another Biden administration handout to organized labor on the backs of taxpayers, small businesses and the free market,” said ABC Vice President of Regulatory, Labor and State Affairs Ben Brubeck. “Unfortunately, the DOL’s final rule disregards the feedback of ABC contractors, construction industry stakeholders and thousands of small businesses urging the withdrawal of this unnecessary, costly and burdensome regulation.” 

All contracts entered into after Oct. 23 will be subject to the new rule’s provisions. Additionally, in certain situations the rule may apply to existing contracts. This includes if a contract is changed to cover substantial Davis-Bacon-covered work not within the scope of the original contract, if an option to extend a contract’s term is exercised, and for ongoing contracts not tied to completion of a particular project.

For more information on the final rule, see ABC’s previous Newsline article, ABC general counsel Littler Mendelson’s analysis, the DOL’s compliance resources and ABC’s online resources at abc.org/davisbacon. ABC also held a members-only webinar on the final rule on Aug. 21, and the recording is now available on the ABC Academy. For any questions regarding the final rule, please contact Michael Altman at altman@abc.org.

OSHA Extends Comment Period on OSHA Walkaround Proposed Rule to Nov. 13

On Oct. 16, the U.S. Department of Labor’s Occupational Safety and Health Administration issued an extension of the comment period for its Worker Walkaround Representative Designation Process proposed rule, which would allow an employee to choose a third-party representative, such as an outside union representative, to accompany an OSHA inspector into nonunion facilities.

OSHA extended the comment period from Oct. 30 to Nov. 13. On Sept. 21, ABC, as a steering committee member of the Coalition for Workplace Safety, wrote to OSHA requesting a 60-day extension. ABC will submit comments in opposition to the rule and ABC members are also encouraged to submit comments on regulations.gov.

On Sept. 26, ABC joined 40 other CWS members in sending a letter to the U.S. House Education and the Workforce Committee’s Subcommittee on Workforce Protections calling out OSHA for its proposed rule and the politicization of the agency that the rulemaking exemplifies. Read CWS’s press release and letter.

To learn more about the rule and what employers can do to prepare, see ABC general counsel Littler Mendelson’s analysis of the proposal. In addition, watch ABC’s members-only webinar, OSHA Developments Affecting the Construction Industry, which is archived in the ABC Academy.

ABC will continue to monitor this issue and provide updates as they become available.