Browse by Date - 202008

The U.S. Fish and Wildlife Service and the National Marine Fisheries Service are proposing to add a definition of “habitat” to the regulations that implement section 4 of the Endangered Species Act (ESA).  The proposed definition – which would be used in the context of making critical habitat designations – comes following a recent U.S. Supreme Court decision that concluded “critical habitat” must first be habitat (Weyerhaeuser Co. v. U.S. FWS, 139 S. Ct. 361 (2018)) (see AGC article).  The Act prohibits adverse modification to “critical habitat” of listed species but it currently does not define “habitat.”   A definition of habitat may help developers and contractors identify and avoid those areas, which would better inform ESA consultations during the planning and permitting process for projects.

On Aug. 11, 2020, the U.S. District Court for the Southern District of New York (SDNY) invalidated the 2017 Department of the Interior legal opinion (M-37050) that had reversed prior policy by stating that the Migratory Bird Treaty Act (MBTA) does not prohibit incidental take.  The SDNY judge disagreed and concluded the MBTA prohibits take “by any means or in any manner.”  The court’s decision adds a new twist to ongoing efforts at the agency to finalize an AGC-supported rule intended to codify the now vacated legal opinion. 

Clarifies Employers’ Obligations to Track Compensable Hours

The U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers have released new implementation tools for the Navigable Waters Protection Rule that went into effect earlier this summer.  These tools are available online for the public to view and include educational resources, new forms, and “implementation memos” to provide greater clarity and consistency implementing the rule across the country.

The National Labor Relations Board (“NLRB” or “Board”) has revised its standard for determining the lawfulness of an employer’s discipline or discharge of an employee who has engaged in abusive or offensive conduct —including making profane, racist, and sexually unacceptable remarks—in the course of activity otherwise protected under the National Labor Relations Act (“NLRA”).

Clarifies Employers’ Obligations to Track Compensable Hours

With telework arrangements expanding in response to the coronavirus pandemic, the U.S. Department of Labor’s Wage and Hour Division (WHD) issued Field Assistance Bulletin (FAB) 2020-5 to clarify an employer’s obligation to track the number of hours of compensable work by employees who are teleworking or otherwise working away from premises controlled by their employers.

Pre-Conference Federal Construction HR Workshop Returns

The 2020 Construction HR and Training Professionals Conference and pre-conference Federal Construction HR Workshop has officially gone virtual.  The workshop is scheduled for September 23 and 24, with the full conference to follow on October 6, 7 and 8.

Delay until September 30  

On August 18, AGC, along with 14 other stakeholders in the transportation community, called on President Trump to oppose any temporary suspension or permanent repeal of dedicated federal user fees that generate revenue for the Highway Trust Fund (HTF).

Calls for One-Year Surface Transportation Extension with Additional Funds

On August 13, a federal prohibition on the use of certain telecommunications components took effect.