The Publication for Merit Shop Pipeline Contractors AMERICAN PIPELINE CONTRACTORS ASSOCIATION 2nd Quarter 2026 Labor Department Issues Proposed Rule on Joint-Employer Status A Closer Look at Flow-Down Provisions APCA Holds Successful Convention in Sunny Florida NULCA: When System Design No Longer Matches Industry Demand A Busy Spring in Washington for APCA
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PIPELINE CONTRACTORS JOURNAL | 2nd Quarter 2026 5 Official Publication of the American Pipeline Contractors Association PO Box 638 Churchton, MD 20733 (703) 212-7745 • www.americanpipeline.org ©2026 American Pipeline Contractors Association AMERICAN PIPELINE CONTRACTORS ASSOCIATION 2nd Quarter 2026 NULCA: When System Design No Longer Matches Industry Demand 11 By Caroline Ferguson The National Utility Locating Contractors Association is no longer quietly hinting that the 811 system has problems. In their blunt call for reform, the message is clear: the current approach is no longer working, and every stakeholder needs to start taking accountability if meaningful change is to happen. APCA Holds Successful Convention in Sunny Florida 17 By Caroline Ferguson In March, APCA members took to the Gulf Coast for five days of Florida sunshine in Bonita Springs. Throughout the week, industry leaders tackled workforce pressures, infrastructure growth, excavation safety, and a rapidly changing business environment shaping pipeline construction. And although industry topics were the main focus, members also enjoyed a little golf, some tours, and plenty of free time to reconnect beyond the conference rooms. Inside Washington | By Ben Brubeck 7 Human Resources | By Greg Guidry 12 Contract Law | By John L. Grayson 14 News Briefs 33 Member News 43 Industry Calendar 46 New APCA Members 46 Advertiser Index 46 Officer Directors Board of Directors Publication Staff Nick Bertram Jomax Construction Co., Inc. Mike Castle, Jr. Castle Paul Cook Sunland Construction, Inc. Scott Coppersmith (Advisory) Mears Group, Inc. David Dacus (Advisory) Troy Construction, LLC Taylor Dacus Troy Construction, LLC Shannon Driver Holloman Corporation Ricky Dyess M.G. Dyess, Inc. John Fluharty (Advisory) Troy Construction, LLC Adam Nietsche Pumpco, Inc. Sean Renfro (Advisory) Sunland Construction, Inc. Aaron Simon (Advisory) Troy Construction, LLC Roy Weaver Weaver, LLC Publisher Timothy Wagner Editor Michael Ancell Associate Editor Caroline Ferguson Advertising Sales Stacy Bowdring Information Technology Greg Smela Accounting James Wagner Layout & Design Joseph Wagner Government Affairs Ben Brubeck Government Affairs Jaime Steve President Kevin LaBauve WHC Energy Services President-Elect Nick Bruno Bi-Con Services Vice President Chris Jones HardRock Infrastructure Services Secretary/Treasurer Patrick McRae Herzog Energy, Inc.
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PIPELINE CONTRACTORS JOURNAL | 2nd Quarter 2026 7 Building on the momentum from APCA’s successful February Washington, D.C. Fly-In, the association’s government relations team has remained actively engaged in advancing APCA’s federal policy priorities this spring. Permitting Reform Talks Continue One of the most positive recent developments for APCA is the renewed bipartisan and bicameral push for federal permitting reform. Congressional leaders continue discussing bipartisan proposals intended to accelerate environmental reviews, reduce duplicative agency processes, and provide greater certainty for infrastructure projects. APCA joined broad industry coalition letters urging lawmakers to advance reforms to the National Environmental Policy Act (NEPA) and to modernize the federal permitting system to help address delays that continue slowing energy and pipeline construction nationwide. Attention remains focused on the Senate, where key committee leaders are expected to release bipartisan permitting reform legislation soon. In April, APCA President Kevin LaBauve, senior vice president of strategic relations at WHC Energy Services in Lafayette, La., joined APCA lobbyist Ben Brubeck at a Washington, D.C., reception for U.S. Sen. Alan Armstrong. Appointed March 23 by Oklahoma Gov. Kevin Stitt to fill the Senate seat vacated by Sen. Markwayne Mullin following his appointment by President Trump as secretary of the Department of Homeland Security, Armstrong is expected to play a key role in Senate permitting reform negotiations. Prior to entering public service, Armstrong served as president and CEO of Williams Companies for 14 years and later as executive chairman of the company’s board. In a May 8 op-ed published in The Hill, Armstrong laid out his permitting reform priorities shaped by decades of industry experience: limiting abuse of Clean Water Act Section 401 reviews, preventing courts from halting projects after lawful permits are issued and construction begins, and tightening legal standing requirements to reduce lawsuits lacking clear evidence of harm. PHMSA’s Rulemaking Modernizes Federal Pipeline Safety Regulations Federal pipeline regulators also remained active this spring. On April 24, PHMSA issued a sweeping package of nearly 40 proposed and final rulemakings updating federal pipeline safety regulations. Several proposals supported by industry would modernize outdated compliance requirements, expand the use of innovative inspection technologies, and provide greater operational flexibility while maintaining safety standards. APCA continues reviewing the proposals and monitoring potential impacts on pipeline construction contractors. Inside Washington Jaime Steve Government Affairs Solutions jsteve@gasolutions.net (202) 841-5493 Ben Brubeck Government Affairs Solutions bbrubeck@gasolutions.net (703) 472-7850 Busy Spring in Washington for APCA Continued on page 8
PIPELINE CONTRACTORS JOURNAL | 2nd Quarter 2026 8 Underground Damage Prevention Progress On April 29, the U.S. Senate passed the APCA-supported PIPELINE Safety Act (S. 2975), which contains provisions incentivizing states to implement stronger underground utility damage prevention programs (Section 221). Similar language is contained in Section 18 of its companion bill in the House, the bipartisan PIPES Act of 2025 (H.R. 5301), which the House Transportation and Infrastructure Committee passed last year. H.R. 5301 still requires approval from the Energy and Commerce Committee before consideration by the full House. Separately, in March, House Energy and Commerce Committee Chairman Brett Guthrie (R-Ky.) held a hearing on the narrower Pipeline Safety Authorization Act of 2026. Section 9 of this bill contains APCA-supported damage prevention language, and APCA highlighted to the committee the importance of strong state one-call enforcement programs, improved utility locate accuracy, and practical policies aimed at reducing excavation damage to underground infrastructure. If either House measure advances through the Energy and Commerce Committee and passes the full House, lawmakers will need to reconcile differences with the Senate-passed PIPELINE Safety Act before final passage. The Infrastructure Investment and Jobs Act, which currently authorizes federal highway and transit programs, expires on September 30, 2026. Congress must pass a new multi-year surface transportation reauthorization bill before that deadline to prevent funding disruptions and address the Highway Trust Fund’s long-term solvency challenges. House Transportation and Infrastructure and Senate Commerce committee staff have signaled a willingness to add the PIPES Act to this must-pass bill, if needed. As underground utility construction activity continues increasing due to federal infrastructure investments, APCA continues advocating for balanced policies that improve coordination among operators, locators, and excavators without creating unnecessary burdens for contractors. APCA also participated in the Damage Prevention Action Center’s May 12-13 Washington fly-in, where members advocated for passage of pipeline safety legislation and elevated industry priorities related to underground utility damage prevention. Damage prevention remains one of the association’s top priorities because of the significant public safety, service reliability, and economic impacts associated with utility strikes. Workforce Development and Labor Policy Activity Heats Up APCA submitted comments April 16 on a U.S. Department of Education proposed rule implementing Workforce Pell initiatives intended to expand Pell Grant eligibility for shortterm workforce training programs. APCA also supported the Streamlining Timely Apprenticeship Registration and Transparency (START) Act, introduced by Senate Republicans to establish more consistent apprenticeship registration guidelines. Expanding access to skilled trades workforce development is a top APCA priority as construction industry contractors face workforce shortages. APCA also engaged on several labor and employment proposals impacting construction employers. On April 28, APCA signed coalition comments supporting a new proposed U.S. Department of Labor regulation intended to provide clarity regarding independent contractor classification. APCA and interested members can submit comments on another DOL proposed regulation on joint-employer standards by June 22 (see related article on page 12). In April, APCA launched a grassroots campaign opposing the Faster Labor Contracts Act, legislation that would needlessly expand federal authority and favor unions during private-sector labor negotiations. APCA also continues pushing back against the Trump administration’s continuation of controversial Biden-era policies promoting government-mandated project labor agreements (PLAs) on federal and federally assisted construction projects. A recent 11th Circuit decision against construction industry plaintiffs challenging the federal PLA mandate suggests that the issue will likely continue through litigation and future executive branch action. Despite that setback, contractors continue successfully challenging agency-specific PLA mandates through bid protests filed at the U.S. Court of Federal Claims. Meanwhile, APCA and allied industry groups continue supporting Inside Washington Continued from page 7 As underground utility construction activity continues increasing due to federal infrastructure investments, APCA continues advocating for balanced policies that improve coordination among operators, locators, and excavators without creating unnecessary burdens for contractors.
PIPELINE CONTRACTORS JOURNAL | 2nd Quarter 2026 9 the Fair and Open Competition Act (H.R. 1209/S. 537), legislation projected to save taxpayers $10 billion annually by prohibiting government-mandated PLAs on federal and federally assisted construction projects. In contrast, congressional Democrats are championing legislation requiring PLAs on certain data center construction projects and may offer amendments to spending bills codifying Biden- and Trump-era pro-PLA policies. In April, President Trump nominated James Macy to fill the remaining Republican seat on the National Labor Relations Board (NLRB). In addition, David Prouty, a Biden nominee whose term is set to expire in August 2026, has been renominated for another five-year term on the board. Confirmation of both nominees would restore a functioning board majority and could lead to reconsideration of several Biden-era labor decisions affecting employers, labor relations, and union organizing policy. Meanwhile, OSHA’s proposed federal heat standard remains a major concern for the construction industry. In April, APCA supported the Heat Workforce Standards Act, Senate legislation intended to stop or substantially revise the Biden administration’s pending heat rule, which many contractors believe would create significant compliance burdens while duplicating existing obligations under OSHA’s General Duty Clause. OSHA, which is reviewing more than 45,000 comments submitted on the proposed rule, also announced continued aggressive heat-related enforcement activity through its National Emphasis Program. Data Centers Increase Energy Infrastructure Demand Beyond current regulatory and workforce debates, explosive growth in artificial intelligence and cloud computing continues driving unprecedented demand for energy infrastructure development nationwide. Utilities, pipeline operators, and developers are increasingly racing to expand natural gas generation, electric transmission capacity, and related infrastructure needed to support large-scale data center projects. Industry analysts project that data center electricity demand will continue accelerating sharply over the next decade, placing additional pressure on permitting systems, supply chains, and workforce availability. APCA continues monitoring these developments closely as growing data center investment creates significant long-term opportunities for pipeline and utility construction contractors. Congress Eyes Midterm Elections As Congress moves into the summer legislative season, lawmakers are expected to focus on government funding legislation and continue debating permitting reform, workforce and safety initiatives, and energy and infrastructure policy as attention increasingly turns toward the November 3 midterm elections. While election day is roughly 24 weeks away, the number of actual days Congress is in session (legislative days) is significantly lower, with both chambers typically taking extensive state work periods in August, September, and October. Foreign policy developments, energy prices, interest rates, presidential approval ratings, congressional retirements, fundraising, redistricting efforts, and a busy primary season are all expected to shape the political environment heading into the 2026 midterm elections, which historically have been challenging for the president’s party. APCA remains actively engaged to ensure that the voice of the pipeline construction industry is properly heard during federal policymaking activity. 7 Provider of Launchers and Receivers for all Pipe Diameters Our Rentals Include: • Pig Launcher Rentals (4”-48”) • Pig Receiver Rentals (4”-48”) • Pig Sales • Valve Rentals 713-906-0271 candacetcrentals17@gmail.com tedbtcrentals@gmail.com www.tcrentalsinc.com P.O. Box 1688 • Tomball, TX 77377
PIPELINE CONTRACTORS JOURNAL | 2nd Quarter 2026 10 During the late 1960s and 1970s, there was a round of rapid infrastructure buildout in the U.S. Workers were frequently hitting buried utility lines because, for the most part, it was hard to tell what was in the dirt beneath them. States began to create their own methods to prevent underground strikes, generally in the form of a “one-call” network. By the 1980s to 1990s, stakeholders were seeing reduced damage rates, but there was still no nationwide, centralized system. Eventually, the federal government stepped in. The Pipeline Safety Improvement Act, signed into law in 2002, required states to strengthen damage prevention efforts and improve one-call systems. Efforts were further consolidated in 2005 when 811 was officially dedicated as the universal nationwide number for all one-call centers. This brings us to today, and the same system is in place, but instead of handling a million requests a year, it now handles more than 43 million. The National Utility Locating Contractors Association (NULCA) has been among the most vocal in raising concerns about this, especially in a recently published white paper, “The System is Designed to Fail: A Call for Structural Reform in the 811 System.” The System is Designed to Fail “The System is Designed to Fail. We’re Done Pretending Otherwise” was the tagline for the article, setting the tone for a blunt and, at times, uncomfortable assessment of the current state of damage prevention. At the core of NULCA’s argument is the idea that the system is being asked to do more than it was originally built to handle, and not enough action is being taken to fix it: “This is not a locator problem. This is not an excavator problem. This is a structural failure that has been building for fifty years while every stakeholder group found reasons to look the other way.” These concerns are not being raised in a vacuum. There is a large performance gap between the 811’s intent and its real-world performance, and it is becoming increasingly evident as data collection has grown over the years. At the center of NULCA’s argument is a direct and unapologetic assertion: the failures seen across the damage prevention system are not always isolated mistakes or bad actors; they are the predictable outcome of how the one-call network is currently structured in the marketplace. The result is a system that is scaling demand without scaling capacity or process. Large-scale infrastructure projects, multi-utility corridors, and congested urban environments are subject to the same turnaround expectations as routine residential tickets, with locators expected to complete work within the 48-hour windows regardless of scope. One example provided in the white paper was a ticket covering 464 million square feet, or more than 8,000 football fields. “That is not a ticket. That is an ambush. And the locating company received it the same way they receive every ticket: when it appeared in their queue. No reasonable person looks at that and concludes the system is working.” NULCA describes the persistent workforce gap in hiring locators, and as ticket demand grows, that gap has only widened, creating a clear misalignment between workload and capacity. The result is predictable: technicians in the field are often forced to take operational shortcuts, not out of negligence, but because unrealistic workloads and time constraints leave them little choice. A small residential dig and a large-scale infrastructure project often move through the same queue, with the same time constraints, and compete for the same limited resources. This mismatch between expectation and reality creates conditions where thoroughness is sacrificed in favor of speed: “It is the direct output of a system that made that outcome inevitable. And we helped build that system by accepting the contracts that funded it. We own that. We are naming it out loud. We are committing to change it. Now let’s talk about what the rest of this industry needs to own.” According to NULCA, one of the more overlooked challenges within the 811 system is the cost to request a locate, which is none. While this was originally intended to encourage compliance and improve safety, it has also created unintended consequences. With no direct cost associated with submitting a locate request, there is little incentive to limit tickets to necessary or imminent work only. Contractors can submit large volumes of requests well in advance, for projects that may be delayed, scaled back, or never materialize at all. “Here is the truth that nobody in this industry has said plainly enough: Any system that allows an excavator to subNULCA: When System Design No Longer Matches Industry Demand By Caroline Ferguson
PIPELINE CONTRACTORS JOURNAL | 2nd Quarter 2026 11 mit unlimited work orders at zero cost, with no consequence for scope inflation, no accountability for tickets that never generate a single shovel of dirt, and a legal requirement that someone respond to all of it within two business days—that system is not broken. It is functioning precisely as designed. And it was designed to fail.” The system’s failures are made even more apparent when considering how much of the underlying data was created before modern tools even existed. GPS-based locating and mapping tools began to emerge in the late 1990s and early 2000s, enabling the digital recording and tracking of underground infrastructure with far greater precision. Yet much of the infrastructure data in circulation predates those advancements, built using methods that lacked today’s level of accuracy and, in many cases, is never fully updated by facility owners. As a result, even the most advanced tools are often layered over outdated or incomplete information, creating a critical breakdown between capability and reality. “One facility owner acknowledged this directly during NULCA’s research: ‘We’re the first to admit our records aren’t always correct.’ Many of your maps were built before GPS-grade accuracy existed. They have not been updated. And every day a technician goes into the field with inaccurate records, you are setting them up to fail, and setting up whoever is digging to get hurt,” NULCA wrote. “There is no accreditation program, no training standard, and no workforce retention initiative that can offset sending a technician into the field with a map that puts the gas main on the wrong side of the road.” Problems in Rural Areas As infrastructure buildout continues to accelerate, it is only predictable that more incidents will continue to occur unless steps are taken to fix a system that was never designed to handle this volume. It’s expensive to locate, the system is overwhelmed, and the data is outdated. This struggle is concentrated in rural communities, where there are substantial investment opportunities for telecommunications and energy infrastructure, but little to no established locator workforce. “In one documented example, a locating company serving a rural territory found out a major fiber build had started when tickets began going late, and complaints arrived. By the time the full scope was understood, the company faced a binary choice: mobilize technicians from other markets at significant expense, or fall further behind and accept the consequences,” NULCA wrote. “There was no time to hire, train, and deploy before the project was over. This is not a failure of the locating company’s planning. It is a failure of a system with no mechanism for advance notice, no financial structure to fund surge response, and no regulatory framework that creates accountability for the operators and construction companies who could share schedule information early but typically don’t.” According to NULCA, another structural pressure point lies in how work is extended and funded within the system. In some states, renewal tickets now make up a significant share of overall volume. In their provided example of California, roughly 40 percent of tickets are renewals that extend existing markings for another 28 days without requiring new field verification. With unlimited renewals permitted, markings that may have degraded, shifted, or been disturbed remain in circulation as if they are still reliable. At the same time, the financial structure behind locating work reinforces these risks. When utilities push contracts through procurement processes structured to continually drive down costs, the downstream impacts are predictable: contractors are underfunded, technicians are overloaded, and turnover increases. Crews are rebuilt with less-experienced workers who are still learning a complex job under tight timelines, creating conditions in which errors are far more likely. These are not isolated issues. They are systemic choices that shape how the work is performed and, ultimately, how risk is distributed in the field. These are all problems with defined solutions; it’ll just take industry-wide effort to implement them. As NULCA lists, mapping must be prioritized because, as noted before, there is little that can be done if maps show underground lines several feet away from where they are marked. Genuine and thorough marking can only be done when there is a local locator workforce appropriately equipped to handle the volume. But at the end of the day, fixing this problem will require alignment across an industry that has long operated in silos. As NULCA makes clear, the system is producing exactly what it was structured to produce. The solutions are not theoretical; they are well understood and increasingly urgent. Until the system evolves to match the scale and complexity of today’s infrastructure demands, the same failures will recur. “This system is designed to fail. We have the data. We have the case studies. We are here to fix it. We are asking every stakeholder to decide whether they are here for the same reason, or whether they are here to protect the system that built this problem in the first place.” “The time for talk is over. The action starts now.” 7
PIPELINE CONTRACTORS JOURNAL | 2nd Quarter 2026 12 Greg Guidry Ogletree Deakins Nash Smoak & Stewart greg.guidry@ogletree.com (337) 769-6583 On April 22, the U.S. Department of Labor (DOL) issued a new proposed rule to clarify when joint-employer liability exists under the Fair Labor Standards Act, aiming to establish a nationwide standard. Contractors need to be familiar with this proposed rule since joint employment is often present on construction projects. The good news is that the proposed rule makes it easier to avoid being sued as a joint employer. The rule also incorporates the joint-employer standards into the rules implementing the Family and Medical Leave Act (FMLA) and the Migrant and Seasonal Agricultural Worker Protection Act (MSPA). The proposal sets forth a four-factor test for vertical joint employment that recognizes the relevance of a potential joint employer’s reserved right to control but also emphasizes that actual exercise of control is more relevant to determining joint-employer status. The proposed rule would further clarify that common business arrangements, such as franchisor arrangements and requirements to comply with general legal obligations or health and safety standards, do not alone establish joint-employer status. The DOL states that the proposal reflects the “commonality” between federal court precedents and resolves a circuit split to create a nationwide standard. Defining Joint-Employer Liability According to the DOL, the proposed rule would establish a nationwide standard for use by the DOL’s investigators and enforcement personnel, promote clarity and uniformity for employers and employees, reduce litigation, and ensure that joint-employer status determinations under FMLA and MSPA regulations align with the DOL’s FLSA analysis and the FLSA’s employment definitions. Under the FLSA, when two or more employers are found to be joint employers, those employers are jointly and severally liable for any wages, damages, and other relief that may be owed to workers, including pay for all hours worked for all joint employers and any overtime premiums that may be due. Similarly, regulations under the FMLA, which adopt the FLSA’s definitions of “employ” and “employee,” require that joint employers provide the leave and job reinstatement protections under the FMLA. Regulations under the MSPA, which provide employment and wage protections for most farmworkers, recognize that the term “employ” includes joint employment. An Evolving JointEmployer Standard The proposed rule is the DOL’s first attempt to define its interpretation of joint-employer liability under the FLSA since July 2021, when the Biden administration rescinded a prior DOL joint-employer rule amid a federal court challenge. The prior joint-employer rule, issued in January 2020 during President Trump’s first term, set out a four-part balancing test similar to the DOL’s new proposed rule that evaluated “the potential joint employer’s exercise of control over the terms and conditions of the employee’s work.” That rule focused not on the potential joint employer’s “ability, power, or right” to control but on whether the employer actually exercised control. However, the U.S. District Court for the Southern District of New York largely vacated that 2020 rule, finding that its narrowed interpretation of joint-employer status contradicted the broad definitions of “employer,” “employee,” and “employ” in the FLSA. On July 30, 2021, the DOL formally rescinded the 2020 rule. The DOL later dropped its appeal, and the U.S. Court of Appeals for the Second Circuit dismissed the case as moot. Like the 2020 rule, the DOL’s new proposed joint-employer rule distinguishes vertical joint employment, where an employee is “jointly employed by two or more employers that simultaneously benefit from the employee’s work,” such as traditional staffing agency/client or contractor/subcontractor Human Resources Labor Department Issues Proposed Rule on Joint-Employer Status
PIPELINE CONTRACTORS JOURNAL | 2nd Quarter 2026 13 relationships, and horizontal joint employment, where an employee works separate hours for two or more employers in the same workweek, but the employers are “sufficiently associated with each other.” The new proposed rule attempts to avoid the 2020 rule’s pitfalls, recognizing that the FLSA’s definitions for “employer,” “employee,” and “employ” and a potential joint employer’s reserved right to control an employee are relevant to the joint-employer analysis. Vertical Joint Employment: Four-Factor Test The proposed rule would, like the 2020 rule, establish a four-factor test based on federal case law to determine where vertical joint employment exists, where no single factor would be dispositive and the ultimate determination of joint-employer status would depend on all facts in the case. The test would turn on whether the potential joint employer: • “hires or fires the employee;” • “supervises and controls the employee’s work schedule or conditions of employment to a substantial degree;” • “determines the employee’s rate and method of payment;” and • “maintains the employee’s employment records.” Much like the DOL’s independent contractor rule proposed in February 2026, the joint-employer rule explains that additional factors may be relevant, but that a unanimous finding on the four main factors in either direction would establish a “substantial likelihood” regarding joint-employment status. Unlike the 2020 rule, which required a potential joint employer to actually exercise control, the proposed rule would state that an employer’s “ability, power, or reserved right to act in relation to the employee is relevant for determining joint employer status.” (Emphasis added). However, the proposed rule states that “the potential joint employer’s actual exercise of control is more relevant than such ability, power, or right.” (Emphasis added). The DOL argues in the Notice of Proposed Rulemaking (NPRM) that this is a “more nuanced position” and “is more consistent with the FLSA and longstanding caselaw.” Horizontal Joint Employment: ‘Sufficiently Associated’ Where there is horizontal joint employment, employees’ total hours worked in a week for each employer must be aggregated for FLSA compliance, and each employer would be “jointly and severally liable” for wages due under the FLSA, including any overtime premiums based on the aggregated hours. The proposed rule largely retains the long-standing analysis from the pre-2020 regulations for horizontal joint employment, which focuses on the relationship between employers based on all the facts and circumstances. Under the proposed rule, two employers would be considered “sufficiently associated” if: • “there is an arrangement between them to share [an] employee’s services;” • “one employer is acting directly or indirectly in the interest of the other employer in relation to the employee;” or • “they share control of the employee, directly or indirectly, by reason of the fact that one employer controls, is controlled by, or is under common control with the other employer.” Excluding Common Business Practices The new proposed rule, like the 2020 rule, seeks to exclude certain common general business models, which, “standing alone,” would not “categorically or in the abstract make joint employer status more or less likely under the FLSA, FMLA, or MSPA”: • Operating as a franchisor or brand-and-supply arrangements or similar business models; • Contractual provisions requiring compliance with general legal obligations or health and safety standards; • Requiring quality control standards to protect brand reputation; and • Providing sample employee handbooks, association health/ retirement plans, or participating in apprenticeship programs. The DOL’s proposed rule is not final and, if finalized, would provide only interpretive guidance for WHD’s enforcement activities. Courts can and will apply their own standards in litigation regarding joint-employer liability. Nevertheless, employers may want to evaluate their relationships with staffing agencies, subcontractors, franchisees, and other entities and consider where joint-employment questions could arise. Additionally, the National Labor Relations Board (NLRB) also recently issued a final rule for joint-employer liability under the National Labor Relations Act (NLRA). That rule, which the NLRA issued without notice and comment, focuses on whether employers “share or codetermine the employees’ essential terms and conditions of employment.” Employers and other stakeholders will have an opportunity to comment on DOL’s new proposed rule, including the four-factor test for vertical joint employment and proposed revisions to the FMLA and MSPA regulations. Comments are due by June 22, 2026. 7
PIPELINE CONTRACTORS JOURNAL | 2nd Quarter 2026 14 Flow-down provisions are blanket contractual clauses that ensure the terms, conditions, and obligations agreed upon between a project owner and the prime (or general) contractor are extended downstream to subcontractors. In the context of pipeline construction, where projects involve multiple tiers of subcontractors, specialty trades, and complex regulatory requirements, these provisions serve as the connective thread binding every participant to a common set of expectations. Basically, obligations owed by the general contractor to the owner are also owed by subcontractors to the general contractor. Flow-down provisions function by incorporating the prime contract into the subcontract by reference. Rather than restate every term of the owner-contractor agreement, the flow-down provides that the subcontractor is subject to the same rights and obligations to which the prime contractor is subject under the prime contract. This ensures the owner’s expectations of quality and contract administration consistently run through the whole project, through every tier. The scope of what flows down can be extensive: items such as insurance coverage terms, requirements to follow state and federal laws, on-site investigation responsibilities, warranty obligations, liquidated damages provisions, and even the scope of the subcontractor’s indemnity obligations can be included. In pipeline construction specifically, flowdown provisions carry heightened importance because of the regulatory overlay applicable to these projects. Contractors working on federal projects should be aware that they often cannot tailor or customize the flow-down clauses in their contracts. Instead, they and their subcontractors are often bound by mandatory flow-down clauses prescribed in federal acquisition regulations. Some of these clauses might not seem relevant to the pipeline work at hand, but they are still required. Any contractors and subcontractors who want to do government work must agree to these mandatory provisions regardless of apparent inapplicability. Pros and Cons for Prime Contractors and Subcontractors Flow-down provisions offer meaningful advantages to both parties in the contracting chain, but they also create significant risks that pipeline contractors of each tier ignore at their peril. Benefits for Prime Contractors. For the prime pipeline contractor, flowdown clauses are a critical risk management tool. They reduce the chance of disputes by ensuring that subcontractors are held to the same standards and requirements as the prime contractor. When properly drafted and understood, these clauses create a unified chain of responsibility, ensuring that performance expectations, safety standards, and regulatory compliance obligations cascade consistently through every tier of the project. Additionally, flowdown clauses can help prime contractors maintain schedule discipline where delay is the enemy that must be avoided. In this regard, uniform and consistent notice provisions are key. Benefits for Subcontractors. Flow-down provisions are not entirely one-sided. Subcontractors can also benefit from these clauses, as the rights enjoyed by the prime contractor under the prime contract may flow down as well. This can include dispute resolution mechanisms, payment protections, and change order procedures that the subcontractor might not otherwise have negotiated for itself. Subcontractors who carefully read and understand the prime contract might find advantageous provisions to employ or rely upon. Risks for Prime Contractors. Despite their utility, flowdown clauses are not necessarily a shield for the prime Contract Law John L. Grayson Cokinos | Young jgrayson@cokinoslaw.com (713) 535-5573 What to Know Before You Go with the Flow—A Closer Look at Flow-Down Provisions
PIPELINE CONTRACTORS JOURNAL | 2nd Quarter 2026 15 contractor. Relying on the flow-down clause to address all issues that may arise between subcontractors and the general contractor that trigger obligations from the contractor to the owner is not advisable. One of the most common areas of potential trouble involves inconsistent notice provisions. For example, a prime contractor may be obliged to notify the owner of any claims for additional time or compensation within seven days, but the subcontractor’s notice clause might allow ten days, creating a dangerous gap. If a subcontractor does not understand its responsibility to timely alert the general contractor of a possible delay, the general contractor may fail to notify the owner within the timeframe by the prime contract. Many flow-down clauses are also written too broadly, and if they incorporate the prime contract’s terms wholesale, they may invalidate specific terms of the subcontract or at a minimum create conflicts. Determining which of the conflicting provisions governs may require a court’s involvement— an expensive consequence. Risks for Subcontractors. Pipeline subcontractors face their own set of dangers. Many subcontractors bind themselves to flow-down clauses without careful review of the prime contract. Subcontractors may unknowingly take on obligations that are far more onerous than anticipated in their subcontract. The argument that a subcontractor did not understand the rights and obligations that flow down because it did not read the prime contract will not get very far. Courts are inconsistent on whether general provisions of the prime contract, such as dispute resolution clauses or forum selection clauses, flow down to subcontractors below. Subs must understand that with flow-down clauses, they may be subject to the prime contract’s more general terms in ways they did not anticipate. If any second tier party is relying on a prime contract provision through a flow-down clause, that reliance may be misplaced, as courts have held that the subcontract’s specific terms may govern over conflicting and more general prime contract provisions. Recommendations Pipeline contractors and subcontractors can take concrete steps to protect their interests and minimize the risks associated with flow-down provisions. Review the Prime Contract. It is surprising how often subcontractors do not do this. General contractors wanting to make flow-down clauses enforceable should provide subcontractors with a documented opportunity to review the prime contract. Concerns about financial or proprietary information can be addressed by redaction while still providing the subcontractor with the key elements of the contract. Subcontractors, for their part, must actually read the prime contract and understand the full scope of obligations they are undertaking. Identify and Resolve Conflicts Early. Contractors should look for inconsistencies between the prime contract and subcontracts up front before a problem arises. Parties would be best served by taking inventory of the prime contract’s and subcontract’s terms at the outset, identifying any that conflict, and then addressing, in express terms, how the conflicts will be handled. This may require more robust and specific flowdown provisions than the parties are accustomed to, but the up-front investment far outweighs the cost of later litigation. Establish an Order of Priority. Pipeline contractors should pay careful attention to the “order of priority” language in their contract documents. These clarify which clauses or items take precedence over others. Making sure an order of priority is in place puts the general contractor in a better position when disputes over conflicting terms arise. Including limiting language that restricts the flow-down clause to terms applicable only to the subcontractor’s scope of work is also a sound strategy. Address Notice Provisions Carefully. Given the particular importance of notice methods and deadlines in pipeline construction, contractors must ensure notice methods and periods in the subcontract are consistent with, or shorter than, those in the prime contract. Misaligned notice provisions are among the most common and costly traps in flow-down clauses. Understand Federal Requirements. For government work, contractors must carefully review mandatory flow-down clauses required by government acquisition regulations as these often differ from non-government work and cannot be negotiated away. Subcontractors should understand that compliance obligations under these provisions may extend well beyond the physical scope of their pipeline work. Conclusion Flow-down provisions are a mainstay of pipeline construction, and parties will encounter them more often than not. Though they may not be in bold print and jump off the page, understanding and accounting for their potential impacts is crucial because nobody wants to be caught on the wrong end of an unexpected obligation. The prudent pipeline contractor should consult with legal counsel to recognize and understand the effect of a flow-down provision. Bottom line: Before you “roll with the flow,” you must know where the flow is taking you! 7
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PIPELINE CONTRACTORS JOURNAL | 2nd Quarter 2026 17 From March 27 to April 1, more than 380 APCA members, family, and friends convened along Florida’s Gulf Coast for the association’s Annual Convention. Hosted at the Hyatt Regency Coconut Point Resort and Spa in Bonita Springs, the event brought contractors, associates, and industry leaders together for several days of meetings, exhibits, and discussions focused on the future of pipeline construction, as well as some fun in the sun, of course. The convention took off with keynote speaker Anthony Bourke, a decorated F-16 fighter pilot who flew missions over New York City following 9-11 and an accomplished businessman. He shared tools that fighter squadrons use to ensure they are aligned, flying in formation, and executing at the highest level. Bourke explained how pre-mission briefings and post-mission debriefings benefited his squadrons and can do the same for APCA-member businesses. He said that the debriefings are not a performance review or a character judgment, but rather “a sacred learning environment and an experience accelerator.” Labor Law Developments The following day, attendees heard from longtime APCA labor counsel Greg Guidry on recent developments in employment law. Blending humor with practical legal analysis, Guidry walked members through labor and employment developments impacting contractors across the country. He has provided these updates at every APCA meeting since 1994, and the crowded room and level of engagement are testimony to the value of his information. APCA’s Voice in Washington Throughout the week, advocacy remained a central theme. APCA President Kevin LaBauve joined TC Energy Vice President and INGAA Foundation Vice Chair Jon Draeger and Cy McNeill, director of federal affairs for the Data Center Coalition (DCC), alongside Government Affairs representatives Ben Brubeck and Jaime Steve, to discuss the association’s recent advocacy efforts and upcoming priorities. The panel also reflected on APCA’s recent Washington, D.C., fly-in, highlighting the association’s growing influence in federal policy discussions. “One of the things that you get by joining APCA is a voice in Washington. Jaime and I are up on Capitol Hill, looking at what legislative policies and regulations are coming out of the agencies and different committees. We’re collaborating with other trade associations, and we’re trying to make sure that your voice is heard. We’re protecting the interests of the industry,” Brubeck said. The advocacy portion of the convention also featured an update from Susan Waller of Natural Allies for a Clean Energy Future, who discussed the organization’s efforts to reshape legislative and public conversations surrounding natural Continued on page 18 APCA Holds Successful Convention in Sunny Florida By Caroline Ferguson
PIPELINE CONTRACTORS JOURNAL | 2nd Quarter 2026 18 gas and energy infrastructure. “Our vision is to change the narrative on energy,” Waller said. “When people talk about fossil fuels, they usually use that in a negative way, but with natural gas, we’ve carved it out as its own entity.” Sunny Forecast for Pipeline Construction Market conditions and long-term industry outlooks also played a significant role in this year’s programming. During his Pipeline Construction Market Report, Continuum Capital’s Mark Bridgers forecasted continued momentum for the industry throughout the next several years. Bridgers noted that the industry is entering “a wave of pipeline construction activity, expected to continue through at least the end of the Trump administration, calling 2026 through 2028 “good, possibly great years” for pipeline construction businesses. Outside of the many educational sessions, attendees participated in numerous networking and recreational events throughout the week. The Annual Contractor and Associate Exhibit and Breakfast allowed members to connect with suppliers and manufacturers while exploring the latest equipment, services, and technologies that support pipeline construction operations. Golfers gathered at Saltleaf Golf Preserve for the APCA golf tournament, where John Weaver, Levi Hancock, Eddy Rivera, and Eddie Weatherford secured the top score with a 61. Meanwhile, other attendees and their families enjoyed a private catamaran excursion and kayak adventures along the Gulf Coast, offering views of local wildlife and Southwest Florida waterways. As one of the convention’s most anticipated traditions, now in its fifth year, the APCA Auction again highlighted the generosity and camaraderie of the pipeline construction industry. Through generous donations and aggressive bidding, the Silent Auction brought in nearly $9,000, and the Live Auction fielded an impressive $315,000, all of which will go toward the new APCA Scholarship Program, Natural Allies for a Clean Energy Future, and building programs and services for APCA members. Honoring APCA’s Finest The week concluded with the APCA Hall of Fame Awards and Final Party, where Greg Guidry and Mark O’Roke were recognized for their longstanding contributions to the industry. Guidry was the first to be inducted. For more than 40 years, he has successfully represented management in all aspects of labor and employment law, with much of his client base consisting of pipeline contractors and APCA members. The second honoree, Mark O’Roke, served as Chairman of the Board, CEO, President, and CFO during his long career at Sunland. O’Roke passed away in 2020, and his daughters, Kimbrali Boyd, Erin Oakley, and Kelly O’Roke, accepted the award on his behalf. Erin Oakley spoke for the family, saying, “What we remember is his example of leadership. He modeled integrity and fairness. He held himself, and us, to high ethical standards. He showed us the importance of discipline and hard work, and he had a sense of humor that could lighten any situation.” As attendees departed Bonita Springs, the 2026 APCA Convention served as both a celebration of the industry’s longstanding progress and a reminder of the significant work ahead. But more than anything, the week highlighted the contractors, associates, and industry leaders whose work continues to build and maintain the infrastructure that powers communities across North America. From October 14 to 17, members will head west and into the mountains for the 2026 Mid-Year Meeting at The Broadmoor Resort in Colorado Springs. Hope to see you there! 7 Convention Recap Continued from page 17 During the Annual Convention in March, the APCA Education & Research Foundation announced the recipients of the 2026-2027 scholarships, each receiving $10,000 toward their higher education. These are the first-ever recipients of APCA scholarships, and the goal is to continue growing the program. Congratulations to the winners: • Jackson Aton, Construction Management at University of Louisiana at Lafayette • Colin Bruno, Mechanical Engineering at Ohio State University • Gray Burch, Construction Engineering Technology at Louisiana Tech University APCA Announces First Scholarship Recipients
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