The Federal Trade Commission (FTC) has released a proposed rule that would prohibit employers from imposing noncompete agreements and rescind those currently in effect. ACEC is currently seeking feedback from firms in order to prepare comments.

The rule defines a worker/employee as a person who “works, whether paid or unpaid, for an employer” including “an employee, individual classified as an independent contractor, extern, intern, volunteer, apprentice, or sole proprietor who provides a service to a client or customer.”

The proposed rule includes certain exceptions.

• The ban on noncompete agreements includes “a limited exception for non-compete clauses between the seller and buyer of a business. This exception would only be available where the party restricted by the non-compete clause is an owner, member, or partner holding at least a 25% ownership interest in a business entity.”
• In addition, as long as they are not unusually broad in scope, “the definition of non-compete clause would generally not include other types of restrictive employment covenants-such as non-disclosure agreements (“NDAs”) and client or customer non-solicitation agreements-because these covenants generally do not prevent a worker from seeking or accepting employment with a person or operating a business after the conclusion of the worker’s employment with the employer.”

If finalized, the rule would establish a nationwide ban on noncompete agreements. California, Colorado, Illinois, Maine, Maryland, New Hampshire, North Dakota, Oklahoma, Oregon, Rhode Island, Virginia and Washington have already banned or restricted the use of noncompete agreements.

ACEC has 60 days to submit comments and according to the accompanying fact sheet, the FTC is looking for feedback on questions such as whether senior executives should be exempt from the rule.

PODCAST: Why Contractors Should Care About Licensing 

Michael J. Armstrong, CEO of NCARB, joins the Art of Construction podcast: Why Contractors Should Care About Licensing.

Listen as Michael explains why contractors should care about the licensing of the architects and engineers they work with, the unintended consequences for the construction industry if licensure is weakened or eliminated, the relationship between licensing and winning projects, securing loans, and affording liability insurance, and how contractors and affiliates can join the Alliance for Responsible Public Licensing’s fight for Responsible Professional Licensing. Listen here.

New Design-Build Study Published by ACEC Research Institute

This landmark study examines design-build (DB) project delivery and how it impacts the success and harmony of the DB team and the success of the project. The report highlights recommendations for owners and engineering firms participating on DB teams. Issues such as risk transfer, insurance requirements, and relationship-building among designers, constructors and owners to promote project harmony are evaluated.

The goal of this study is to identify unique design-build (DB) challenges and their impacts on effective project delivery.

This first-of-a-kind American Council of Engineering Companies (ACEC) Research Institute study is based on a three-step approach:

• Firm-based data from 155 ACEC design firms of various sizes participating in DB projects across diverse US market sectors;
• Project performance data obtained from 105 completed DB projects of various sizes delivered in the US market; and
• Interview findings from 16 case studies that were selected from best and worst performing projects.

To access the study, click here.

White House Releases Action Plan to Speed Infrastructure Investments 

The White House released “The Biden-Harris Action Plan for Accelerating Infrastructure” in October 2022. The plan is an effort to improve coordination, provide better resources and capacity, and limit cost and schedule overruns. The 21-page report can be accessed here.

Speaker McCarthy Names House Transportation and Infrastructure Chair 

Speaker Kevin McCarthy has named Missouri Congressman Sam Graves Chairman of the House Transportation and Infrastructure Committee. Congressman Graves has already outlined his priorities in the upcoming 118th Congress, Engineering News Record reports.

Changes to PE Licensure Introduced in Missouri 

Legislation was recently introduced in Missouri that would change how professional engineers can become licensed. House Bill 270 and Senate Bill 88 create a path to licensure by way of work experience. If an individual moves to Missouri and the State of Missouri requires a license to perform the same type of work the individual performed in their state of previous residence without a license for at least 3 years, the individual can become professionally licensed. The Missouri Society of Professional Engineers successfully opposed a similar piece of legislation last session.

It is expected that similar legislation will continue to be introduced across the country seeking to dramatically modify the methods by which design professionals become licensed.  These proposals run the gamut from wholesale elimination of all licensure requirements, modifications of education requirements — in some cases eliminating college degree requirements, for example — and proposals that seek to make it easier for licensed professionals to become licensed in other states.

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