Courts Split on Liability Standard for Workplace Harassment by a Non-Employee A 6th Circuit decision in August makes it harder for plaintiffs to succeed on discrimination claims based on non-employee conduct – a risk that construction employers are more exposed to due to job sites routinely involving multiple external parties. However, employers should continue to take third-party harassment seriously, especially because the 6th Circuit’s new intent-based Title VII standard is not the norm nationwide and is at odds with EEOC regulations. State Lawmakers Targeted Wide Range of Construction Industry Topics Washington enacted a law that expanded the state’s prevailing wage law in July, and enforcement of that law will ramp up starting in 2026. Colorado enacted a law in June that will authorize state government agencies to incorporate a project labor agreement requirement for public projects of $1M or more if certain factors are met starting in July 2027. California lawmakers considered a bill, which ultimately stalled out, that aimed to prevent employers from posting job notices for positions that don’t actually exist – a growing trend referred to as “ghost” job postings, which occurs most frequently within the construction industry, according to hiring platform Greenhouse.
2025 PREDICTIONS RECAP
CONSTRUCTION
As we predicted, the new Trump administration brought back an overall more relaxed regulatory environment. In July, the DOL launched one of the most sweeping deregulatory efforts in recent memory, including a proposal to rescind the agency’s construction illumination requirements, among more than 20 new OSHA initiatives. And while many thought Trump’s OSHA would shelve the first-ever proposed national heat standard, the agency has continued moving it forward and is now reviewing feedback it received during a post-hearing comment period that ended in October. OSHA Jumped on the Wave of Deregulation – For the Most Part We also correctly predicted that the new administration’s immigration enforcement efforts would create construction labor shortages and ongoing challenges in hiring skilled workers. These impacts “varied considerably by state,” according to this 2025 Workforce Survey, which shows Georgia as one of the states with the highest percentages (75%) of construction firms reporting they’d been impacted by immigration enforcement activities during the past six months. Heightened Immigration Enforcement Created Challenges In line with our predictions, President Trump imposed tariffs that increased costs for many types of construction materials and shifted away from Biden-era industry initiatives. For example, the US Transportation Secretary pulled the plug in July on funding for California’s high-speed rail project, and the administration may be considering significant funding cuts for mass transit projects, according to internal proposals obtained by Politico (subscription required) in November. Industry Took Major Hits From Tariffs, Funding Cuts
PREDICTIONS FOR 2026
Technology, Monitoring, and Surveillance Will Spark New Types of Claims As the adoption of drones and AI-driven tools become commonplace, issues around privacy, data protection, off-the- clock work, and workplace surveillance will require contractors to develop clearer policies and disclosures. A Loop of Labor Shortages and Rapid Expansion of AI Data Facilities Labor shortages will continue – especially for data center development projects given the surge in demand – and prompt more technological advances and reliance on AI. We will see a push for PLAs in contracting for data centers.
Expanded Employee Protections We will see stricter worker classification rules and more disputes around independent contractor classifications. Mandated availability of opioid overdose reversal medication on job sites (and related employee training) will become increasingly prevalent. States will continue to expand leave laws and other employee- friendly policies in response to federal deregulation. More Compliance Audits Wage-theft enforcement actions will expand in more states, leading to more audits and increasing the importance of compliance and record-keeping. Increased I-9 audits and ongoing jobsite raids will require employers to continue to be vigilant about verification and compliance.
Collin D. Cook San Francisco/Irvine Partner, Co-Chair
OUR PREDICTIONS WERE CORRECT
HOW DID WE DO?
MORE FROM 2025 New OSHA Rules on Proper Fit of PPE A major update to OSHA’s personal protective equipment standard for the construction industry kicked in
Tami Essis Culkar Denver Partner, Co-Chair
mid-January. It requires employers to provide PPE that not only is appropriate for protecting against specific job hazards but also properly fits workers based on their unique body type. Although the rule applies to all workers, the update is particularly impactful for the increasing number of women working in construction.
BACK TO HOME
Made with FlippingBook - Online magazine maker