During consideration of the final rule, Associated Builders and Contractors stated in its comments to the NLRB that a general contractor must exercise a certain amount of control over its subcontractors and their employees simply to ensure the safe and efficient performance of the work. The most common construction jobsites are multiemployer worksites, and the general contractor or construction manager schedules and coordinates the work of many subcontractors, often in multiple tiers, who perform their services simultaneously or in sequence. The general contractor directs the work on the site and controls the schedule, which may be affected by weather, availability of materials, local building inspection regimes and many other factors.
Unfortunately, the October 2023 rule issued under President Joe Biden reverts to an unworkable standard based on “exercised control” and a nonexhaustive list of factors, some of which have yet to be determined. Under the new final rule, a general contractor, in most cases, would be considered a joint employer of its subcontractors. This will undoubtedly cause chaos, muddying the waters and making many of these previously successful and effective business relationships unworkable.
However, significant opposition has arisen in Congress, with the House voting on Congressional Review Act resolution H.J. Res. 98 this week. H.J. Res. 98, if enacted, would not only prevent the rule from going into effect but would also prohibit a similar rule from being issued in the future. This CRA resolution of disapproval is critical to combatting this ill-advised rule and ensuring that the construction industry can continue its important work. ABC urges you to contact your U.S. representative and tell them to vote for H.J. Res. 98 on the floor this week!