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A federal judge in Texas has nixed the Biden Department of Labor’s withdrawal of a Trump administration rule governing whether a worker is an employee or an independent contractor.

U.S. District Court Judge Marcia A. Crone reinstated the Trump independent contractor rule, finding that the DOL violated federal administrative procedures in the way it delayed and then withdrew the rule.

Judge Crone agreed with the plaintiffs — the Coalition for Workforce Innovation, Associated Builders and Contractors of Southeast Texas, Associated Builders and Contractors and Financial Services Institute — that DOL failed to provide sufficient notice, consider alternatives, and give time for meaningful comment before withdrawing the rule that was to go into effect shortly after the Biden team took office.

The Trump rule was published on Jan. 7, 2021, with an effective date of March 8, 2021. The Biden administration delayed the effective date of the rule in January, and then on May 6 withdrew it entirely.

The judge’s ruling means the Trump independent contractor rule remains in effect dating back to March 8, 2021, and the ball is back in the Biden court.

The DOL argued that the 19-day comment period for comment on the proposed delay was adequate as it received more than 1,500 comments compared to the approximately 1,800 comments received in response to the rule when it was published in September 2020.

However, the judge noted that while the Administrative Procedures Act (APA) does not mandate the minimum number of days necessary for adequate comment, circumstances warranting a comment period of less than 30 days are “rare” and generally require “good cause.”

She found that the defendants failed to establish that any “serious, imminent harm” would result if the Trump independent contractor rule were to have gone into effect on March 8, 2021. “The court surmises that had the rule gone into effect, some employees may have been reclassified as independent contractors, but it is unlikely that the Independent Contractor Rule would have caused grave harm to the safety or security of American workers,” she wrote.

She also found that DOL failed to consider alternatives to the total withdrawal of the rule and, in so doing, failed to “consider important aspects of the problem before it — the lack of clarity of the economic realities test and the need for regulatory certainty.”

The independent contractor rule was an effort to provide clarity to the economic realities test — the multi-factor test used by courts to “determine whether, as a matter of economic reality, an individual is in business for himself or herself as an independent contractor, or is an employee of another” under the Fair Labor Standards Act (FSLA). The economic realities test has evolved over time in courts but has typically included five or six factors.

The factors courts have applied under the economic realities test have included: the nature and degree of control exercised by the company over the worker; the worker’s opportunity for profit or loss; the worker’s investment in the business; the permanence of the working relationship; the degree of skill required to perform the work; and the extent to which the work is an integral part of the company’s business.

The Trump rule sought to have two of the factors — the nature and degree of control over the work and the individual’s opportunity for profit or loss — carry more weight than the other factors, with the reasoning being that if they both point towards the same classification, there is a “substantial likelihood that is the individual’s accurate classification.”

Advocates for the Trump rule argued that this approach would clarify the status of workers in an age of app-services firms like Uber, DashDoor and Instacart by narrowing the review and prioritizing certain factors to be weighed in deciding if a worker is an employee or an independent contractor.

The plaintiff Coalition for Workforce Innovation maintains that current workforce and labor laws are “woefully outdated.” Its members include Uber, Lyft, the American Staffing Association, Kelly Services, Amway, Mary Kay, Intact Insurance and other firms,

According to the Biden DOL, the Trump rule’s prioritization of two “core factors” for determining employee status under the FSLA would have undermined the “longstanding balancing approach of the economic realities test and court decisions requiring a review of the totality of the circumstances related to the employment relationship.”

The Biden administration sought to restore the previous approach to enforcing the FSLA that allows companies to classify their contractors as independent but requires a broader analysis. The Biden administration contends that the Trump rule narrowed the definition of employee and could result in workers losing federal protections for minimum wage and overtime compensation, as well as jeopardize their unemployment insurance and workers’ compensation benefits. Workers classified as independent contractors could also face more difficulty forming unions than employees.

“By withdrawing the independent contractor rule, we will help preserve essential worker rights and stop the erosion of worker protections that would have occurred had the rule gone into effect,” said Secretary of Labor Marty Walsh in announcing the withdrawal.

Asked whether the Biden administration would appeal the court ruling or begin a new rulemaking process, Seema Nanda, the lawyer for the DOL, said the administration “is evaluating all legal options, including the potential need for rulemaking.”

“When employers misclassify workers as independent contractors, workers lose key rights and protections, hurting labor standards across the board and making it harder for law-abiding employers

to compete on an even playing field,” Nanda said in a statement to Insurance Journal.

The construction industry will need to attract nearly 650,000 additional workers on top of the normal pace of hiring in 2022 to meet the demand for labor, according to a model developed by Associated Builders and Contractors (ABC).

“ABC’s 2022 workforce shortage analysis sends a message loud and clear: The construction industry desperately needs qualified, skilled craft professionals to build America,” said Michael Bellaman, ABC president and CEO. “The Infrastructure Investment and Jobs Act passed in November and stimulus from COVID-19 relief will pump billions in new spending into our nation’s most critical infrastructure, and qualified craft professionals are essential to efficiently modernize roads, bridges, energy production and other projects across the country. More regulations and less worker freedom make it harder to fill these jobs.”

ABC’s proprietary model uses the historical relationship between inflation-adjusted construction spending growth, sourced from the U.S. Census Bureau’s Value of Construction Put in Place survey, and payroll construction employment, sourced from the U.S. Bureau of Labor Statistics, to convert anticipated increases in construction outlays into demand for construction labor at a rate of approximately 3,900 new jobs per billion dollars of additional construction spending. This increased demand is added to the current level of above-average job openings. Projected industry retirements, shifts to other industries and other forms of anticipated separation are also factored into the model.

Based on historical Census Bureau Job-to-Job flow data, an estimated 1.2 million construction workers will leave their jobs to work in other industries in 2022. It is expected that this will be offset by an anticipated 1.3 million workers who will leave other industries to work in construction.

“The workforce shortage is the most acute challenge facing the construction industry despite sluggish spending growth,” said ABC Chief Economist Anirban Basu. “After accounting for inflation, construction spending has likely fallen over the past 12 months. As outlays from the infrastructure bill increase, construction spending will expand, exacerbating the chasm between supply and demand for labor.

“An added concern is the decline in the number of construction workers ages 25-54, which fell 8% over the past decade. Meanwhile, the share of older workers exiting the workforce soared,” said Basu. “According to the Centers for Disease Control and Prevention, the industry’s average age of retirement is 61, and more than one in five construction workers are currently older than 55.

“The scarcity of qualified skilled workers is an even more pressing issue,” said Basu. “Since 2011, the number of entry-level construction laborers has increased 72.8%, while the number of total construction workers is up just 24.7%. For reference, the number of electricians was up 23.9% over that span while the number of carpenters actually declined 7.5%. The number of construction managers has increased by just 2.1%. More than 40% of construction workforce growth over the past decade is comprised of low-skilled construction laborers, who represent just 19% of the workforce.

“The roughly 650,000 workers needed must quickly acquire specialized skills,” said Basu. “With many industries outside of construction also competing for increasingly scarce labor, the industry must take drastic steps to ensure future workforce demands are met.”

In 2023, the industry will need to bring in nearly 590,000 new workers on top of normal hiring to meet industry demand, and that’s presuming that construction spending growth slows next year.

“Now is the time to consider a career in construction,” said Bellaman. “The vocation offers competitive wages and many opportunities to both begin and advance in an industry that builds the places where we work, play, worship, learn and heal. ABC member contractors use flexible, competency-based and market-driven education methodologies to build a construction workforce that is safe, skilled and productive. This all-of-the-above approach to workforce development has produced a network of ABC chapters and affiliates across the country that offer more than 800 apprenticeship, craft, safety and management education programs—including more than 300 registered apprenticeship programs across 20 different occupations—to build the people who build America.”

Click here to view ABC’s methodology in creating the workforce shortage model.

Covid-19 has caused major disruptions in the construction workforce, and the expected infusion of funds from the Infrastructure Investment and Jobs Act (IIJA) will further pinch contractors’ ability to find enough workers to complete projects, according to the Associated Builders and Contractors.

According to a newly released model developed by ABC the industry will need to attract nearly 650,000 additional workers above its normal hiring pace in 2022 to meet the demand for labor.

“The workforce shortage is the most acute challenge facing the construction industry despite sluggish spending growth,” says Anirban Basu, ABC’s chief economist.

But spending is about to increase dramatically through the rollout of the infrastructure law, “exacerbating the chasm between supply and demand for labor,” Basu adds.

Potential impacts could include: project delays; increased costs for projects that will be passed on to clients, and, ultimately, consumers; and less “bang for the buck” on IIJA projects because projects will cost more, Basu says.

Project delays already are occurring. For example, on Feb. 15, a Taiwanese manufacturer announced that it would extend the completion date by six months for a new $12-billion chip fabrication plant in Phoenix, citing labor shortages as the primary cause.

An additional concern is the decline in the number of construction workers aged 25-54, which fell 8% over the past decade, Basu says.

At the same time, the number of people retiring and exiting the workforce has soared, with more than one in five construction workers nearing retirement age. Low-skilled construction laborers account for most of the growth in the construction workforce, ABC says.

Labor unions and contractors that work with union labor are also feeling the pain, says Kevin Tighe, vice president of labor relations and field service at the National Electrical Contractors Association (NECA), whose members are electrical contractors that hire International Brotherhood of Electrical Workers (IBEW) labor to staff their jobs.

Tighe says, “Manpower shortages are our biggest concern right now. There’s large projects coming where we’re struggling to figure out ways to [fully staff].”

Whether union-affiliated or not, contractors are all “competing for the same people,” Tighe says. As a result, he adds, “Everyone’s increasing their wages, everyone’s increasing the extras paid on jobs sites. There is a war for talent.”

In the short term, in  “hot spots” such as cities in Arizona and Texas experiencing severe shortages, NECA and IBEW are using social media, job fairs, hiring websites and other outreach methods to attract the talent needed to fill a growing list of large projects.

NECA and IBEW have created a workforce recruitment task force to take a longer view of the challenge.

NECA also has long worked with groups like Ready for Work to hire formerly incarcerated youth into pre-apprenticeship programs and has federal grants to team with such programs in about 20 cities across the U.S. “We are 100% committed to help knock the doors [to gainful employment] down,” Tighe says.

ABC has similar outreach programs and its own workforce development centers across the nation. ABC’s Baltimore Chapter recently established a workforce training academy in East Baltimore, an economically disadvantaged community, and has reached “a lot of people who otherwise might not be aware of the opportunities” presented by construction work, Basu says.

The industry needs to work together to build awareness of construction careers