**Note: This article was updated on July 13.

On June 13, the Biden administration released its . The agenda lists upcoming rulemakings and other regulatory actions from each agency that the administration expects to publish in 2023. ÀÏÅ£Ó°ÊÓhas prepared a summary of the actions of interest to ÀÏÅ£Ó°ÊÓmembers by agency. 

U.S. Department of Labor

Occupational Safety and Health Administration

Improve Tracking of Workplace Injuries and Illnesses

On June 30, 2022, ÀÏÅ£Ó°ÊÓsubmitted comments urging OSHA to withdraw the proposed amendments to the Improve Tracking of Workplace Injuries and Illnesses rule, which would require establishments with 100 or more employees in certain designated industries to electronically submit information from their OSHA Forms 300, 301 and 300A to OSHA annually. Establishments with 20 to 99 employees in certain designated industries would continue to be required to electronically submit information from their OSHA Form 300A to OSHA once a year. OSHA intends to make much of the data it collects publicly available online.

ÀÏÅ£Ó°ÊÓurged the agency to withdraw the proposed rule because it does nothing to achieve OSHA’s stated goal of reducing injuries and illnesses and fatalities. Instead, the proposal will force well-meaning, responsible employers to disclose sensitive information to the public that can easily be manipulated, mischaracterized and misused for reasons wholly unrelated to safety, as well as subject employers to illegitimate attacks and employees to violations of their privacy. 

This rule was first issued under the Obama administration. In 2019, the Trump-era DOL issued a , which eliminated the Obama-era requirement for establishments with 250 or more employees to electronically submit information from OSHA Forms 300 and 301 to OSHA annually. Currently, covered establishments are only required to electronically submit information from OSHA Form 300A to OSHA.

On April 7, 2023, the DOL sent its final rule to the OIRA at the OMB for review.  According to the regulatory agenda, . 

Heat Injury and Illness Prevention in Indoor and Outdoor Settings

On Oct. 27, 2021, OSHA issued an , which requested information on how to implement regulations to prevent workers from hazardous heat. ABC, as a steering committee member of the , submitted  in response to the ANPRM on Jan. 26, 2022.

On April 12, 2022, OSHA announced a National Emphasis Program on Outdoor and Indoor Heat-Related Hazards, which sets out a targeted enforcement effort and reiterates OSHA’s compliance assistance and outreach efforts.

ÀÏÅ£Ó°ÊÓstrongly supports worker safety and protection from heat injury and illness. However, flexibility for employers must be maintained in any rulemaking on this issue. A regulatory approach—if adopted—must be simple and should integrate the key concepts of “water, rest, shade.” ÀÏÅ£Ó°ÊÓalso supports a separate regulatory approach for the construction industry to ensure the regulation is adaptable to the fluid nature of the construction environment.

According to the regulatory agenda, .   

Worker Walkaround Representative Designation Process

to “clarify the right of workers and certified bargaining units to specify a worker or union representative to accompany an OSHA inspector during the inspection process/facility walkaround, regardless of whether the representative is an employee of the employer, if in the judgment of the Compliance Safety and Health Officer such person is reasonably necessary to an effective and thorough physical inspection.”

On Feb. 21, 2013, OSHA issued a letter of interpretation endorsing union representatives and other nonemployee third parties accompanying OSHA inspectors on walkaround inspections at nonunion workplaces, which ÀÏÅ£Ó°ÊÓadamantly opposed and expressed serious concerns. OSHA eventually .  

Occupational Exposure to COVID-19 in Healthcare Settings

On April 22, 2022, ÀÏÅ£Ó°ÊÓas a member of CISC, submitted  in response to OSHA’s request for additional comment on its “potential provisions or approaches” to a . CISC opposes OSHA’s proposal to expand coverage under any promulgated final rule and include certain construction work in health care settings.

ÀÏÅ£Ó°ÊÓalso submitted  on April 22 as a steering committee member of the . The CWS believes unequivocally that OSHA is not permitted to, and must not, issue a permanent standard after having . 

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Personal Protective Equipment in Construction

The agency is expected to issue a clarifying the requirements for the fit of personal protective equipment in construction in June 2023.

Powered Industrial Truck Design Standard Update

On May 17, 2022, ABC, as a steering committee member of CISC, submitted  to OSHA voicing compliance and cost concerns on the proposed rule on powered industrial trucks design standard update.

According to the regulatory agenda, .

Welding in Construction Confined Spaces

In August 2023, OSHA intends to issue a  to amend the Welding and Cutting Standard in construction to eliminate any perceived ambiguity about the definition of “confined space” that applies to welding activities in construction.

Procedures for the Use of Administrative Subpoenas 

OSHA intends to adopt a regulation addressing the use of subpoenas during OSHA investigations to provide helpful clarity to the agency and the regulated public on these issues while promoting transparency and uniform subpoena practice across the agency.

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Infectious Diseases

In March 2024, OSHA intends to issue a  on infectious diseases and examine regulatory alternatives for control measures to protect employees from infectious disease exposures to pathogens that can cause significant disease. The agency listed several workplaces where these control measures might be necessary, including health care, emergency response, correctional facilities, homeless shelters, drug treatment programs and other occupational settings where employees can be at increased risk of exposure.

Wage and Hour Division

Updating the Davis-Bacon and Related Acts Regulations

On March 18, 2022, the DOL’s Wage and Hour Division issued a that would “modernize” the Davis-Bacon Act and related regulations. Despite its stated purpose, the rulemaking would instead reverse course by undoing Reagan administration reforms, making union rates more likely to be adopted as prevailing wages and expanding prevailing wage requirements to cover certain prefabrication work, transportation and flaggers, among other concerns.

ÀÏÅ£Ó°ÊÓ to gather insight on the potentially harmful impacts of this proposal and utilized the data gathered in its comment letter, . In nearly 70 pages of comments on the proposed rule, ÀÏÅ£Ó°ÊÓopposed and provided feedback on many of the more than 50 significant changes in the proposed rule.

On Dec. 16, the DOL sent its  to the Office of Information and Regulatory Affairs at the Office of Management and Budget for review. .

(/) as well as any state and local prevailing wage laws that mandate wage and benefit rates. In the absence of full repeal of the Davis-Bacon Act and state prevailing wage laws, ÀÏÅ£Ó°ÊÓcontinues to support legislative and regulatory reform efforts designed to mitigate its negative effects on industry and taxpayer stakeholders and failure to reflect the current market rate. ÀÏÅ£Ó°ÊÓopposes expansion of Davis-Bacon and state and local prevailing wage laws into areas of public and private projects in which it has not been previously mandated.

Independent Contractor

In January 2021, the Trump-era DOL issued an independent contractor final rule under the Fair Labor Standards Act, which ÀÏÅ£Ó°ÊÓ. The 2021 final rule placed emphasis on two “core” factors—a worker’s control over their work and their opportunity for profit or loss, both of which are paramount in making an independent contractor determination.

Soon after the 2021 final rule was issued, the DOL froze and then rescinded the Trump rule over the opposition of ÀÏÅ£Ó°ÊÓand other industry associations. On March 26, 2021, ABC, the ÀÏÅ£Ó°ÊÓSoutheast Texas chapter and the Coalition for Workforce Innovation against the DOL. On March 15, 2022, the U.S. District Court for the Eastern District of Texas dealt a blow to the Biden administration’s efforts to delay and rescind the  in that case. Under a  applauded by ABC, the ABC-supported  went into effect as scheduled on March 8, 2021, and remains in effect today.

The DOL filed an appeal to the Fifth Circuit Court of Appeals, which remains pending. But on Oct. 11, 2022, the DOL a new proposed rule to rescind and replace the ABC-supported 2021 final rule on independent contractors. The appeal is now in abeyance awaiting the DOL’s final rule.  

On Dec. 13, ÀÏÅ£Ó°ÊÓsubmitted comments opposing the DOL’s new proposed rule. In the comments, ÀÏÅ£Ó°ÊÓargued that the proposal creates an ambiguous and difficult-to-interpret standard under which employers will be forced to guess which factors will be more important in the determination and how to analyze the facts of their contractual relationships under multiple factors. This confusion will lead to more litigation, as employers and workers alike will not understand who qualifies as independent contractors.

A final rule is currently targeted for release in August 2023.

Overtime

The DOL is expected to issue on the “exemption of bona fide executive, administrative, and professional employees from the Fair Labor Standards Act’s minimum wage and overtime requirements” (also known as the “white-collar” exemptions).

In 2016, the DOL issued a final overtime rule that would have doubled the minimum salary level for exemption from $23,660 to $47,476 per year. ABC, along with several other business groups, sued the DOL in federal court and succeeded in blocking the rule from taking effect.

In 2019, the Trump-era’s DOL issued a to formally rescind the 2016 rule and readjusted the salary threshold to $35,568 per year. The final rule went into effect on Jan. 1, 2020.  

ÀÏÅ£Ó°ÊÓcontinues to the Biden DOL to abandon or postpone any future overtime rulemaking, since it was just modified in 2019. Further, any new overtime rule would fail to recognize the lingering economic consequences of inflation, global supply chain disruptions, rising materials prices and workforce shortages.

Nondisplacement of Qualified Workers Under Service Contracts

On Aug. 15, 2022, ÀÏÅ£Ó°ÊÓsubmitted comments to the DOL identifying a number of concerns with its , which would implement .

Issued on Nov. 18, 2021, by President Joe Biden, the EO requires that federal agencies include a clause about nondisplacement of workers in solicitations and contracts for projects covered by the McNamara-O’Hara Service Contract Act of 1965. The required clause states that successor contractors and subcontractors who win a bid for covered work must offer qualified employees employed under the predecessor contract a right of first refusal of employment under the successor contract.

ÀÏÅ£Ó°ÊÓbelieves that, due to conflicts between the DOL’s proposal and the statutory language of the SCA, the proposed rule must be withdrawn in its entirety. Further, ÀÏÅ£Ó°ÊÓis disappointed that the DOL’s new proposal fails to address any of ABC’s concerns expressed in its 2010 comment letter related to the Obama rule and EO and instead imposes additional burdens on service contractors. Should the DOL decide to proceed with this rulemaking, the proposal as written will create substantial inefficiencies in the federal procurement process.

Office of Labor-Management Standards

Form LM-10 Employer Report

On Oct. 13, 2022, ÀÏÅ£Ó°ÊÓsubmitted a comment letter to the DOL’s Office of Labor-Management Standards regarding its . ÀÏÅ£Ó°ÊÓopposed the new proposed revision, which would add a checkbox to the form for employers to disclose whether they are a federal contractor, as well as identifying information and the federal agency or agencies contracted for.

Employers must file this form with the OLMS to disclose certain payments, expenditures, agreements and arrangements, including the hiring of outside labor relations consultants to help inform their employees regarding union organizing or collective bargaining, known as “persuader activities.”

It is clear that the intent of the proposed revision is to discourage persuader activities by federal contractors, despite the fact that these activities are lawfully permitted by the Labor-Management Reporting and Disclosure Act within certain limitations. The revision would accomplish this goal by increasing public pressure on these federal contractors and assisting advocacy efforts against these companies and federal agencies that choose to employ them, as well as potentially providing a basis for federal agencies to “blacklist” these contractors in future regulations.

In April, the DOL sent its final rule on the to the OIRA at the OMB for review. The final rule is expected to be issued in August 2023.   

Office of Apprenticeship

National Apprenticeship System Enhancements

By August 2023, the DOL’s Office of Apprenticeship intends to issue a overhauling the government-registered apprenticeship system, with the stated goal of “enhancing worker protections and equity, improving the quality of registered apprenticeships, revising the state governance provisions, and more clearly establishing critical pipelines to registered apprenticeships such as pre-apprenticeships so that the National Apprenticeship System is more responsive to current worker and employer needs.” 

On May 9, 2023, an ABC-led coalition of construction and business associations submitted a letter to the Advisory Committee on Apprenticeships opposing the committee’s to the DOL for changes to the GRAP system. These recommendations included a proposal to establish a new “Quality Seal” program to give preferential treatment to GRAPs meeting certain requirements.

U.S. Department of the Treasury

Inflation Reduction Act Prevailing Wage and Apprenticeship Regulations

The ABC-opposed  was signed into law on Aug. 16, 2022, and provides over $270 billion in tax credits for the construction of solar, wind, hydrogen, carbon sequestration, electric vehicle charging stations and other clean energy projects. A new policy in  grants developers/taxpayers a bonus tax credit 500% greater than a baseline tax credit of 6%. However, this is conditioned on requirements that project contractors meet prevailing wage and apprenticeship requirements outlined in the legislation and . This new policy is an unprecedented expansion of prevailing wage and government-registered apprenticeship requirements/enticements onto private construction projects via the federal tax code.

Treasury is expected to issue a proposed rule to provide additional guidance on these requirements by . As additional information becomes available, it will be added to ABC’s IRA Resources and Guidance for Contractors and Developers.

Federal Acquisition Regulation Council

Use of Project Labor Agreement for Federal Construction Projects 

On Feb. 4, 2022, President Biden signed . Once implemented following a rulemaking by the Federal Acquisition Regulatory Council that is expected to be completed in 2023, federal agencies will require that every prime contractor and subcontractor on a federal construction project of $35 million or more performed within the United States sign a PLA as a condition of winning a taxpayer-funded contract.

In 2022, an ABC-led coalition of associations and organizations representing tens of thousands of companies and millions of employees in the construction industry sent a Feb. 15 letter to the White House and a Feb. 28 letter to Congress highlighting concerns with President Biden’s efforts to require controversial government-mandated PLAs on federal and federally assisted construction contracts. , and sent to the White House opposing its pro-PLA policies.

Additionally, ÀÏÅ£Ó°ÊÓ the White House a on April 6 with more than 1,200 signatures from member companies and chapters strongly opposing the executive order and other efforts by the Biden administration to push PLAs on federally assisted projects.

Nevertheless, on Aug. 19, the FAR Council published a requiring federal construction contracts of $35 million or more to be subjected to project labor agreements, in accordance with EO 14063.

ÀÏÅ£Ó°ÊÓcondemned the proposal and included the results of its Sept. 7, 2022, survey of ÀÏÅ£Ó°ÊÓcontractor members’ opinions and experiences with government-mandated PLAs in more than 40 pages of comments submitted to the FAR Council opposing the rule on Oct. 18. In addition, , and submitted comments to the FAR Council opposing the rule.

Disclosure of Greenhouse Gas Emissions and Climate-Related Financial Risk

On Nov. 14, 2022, the Federal Acquisition Regulatory Council issued a  to amend the Federal Acquisition Regulation to require certain federal contractors to disclose their greenhouse gas emissions and set GHG emission reduction targets. Under the proposed rule, certain federal contractors would be required to inventory their annual GHG emissions, disclose this information to the federal government and set targets for reducing GHG emissions. Contractors that fail to comply with these requirements would be deemed nonresponsible and ineligible for federal awards.

On Feb. 13, 2023, ÀÏÅ£Ó°ÊÓsubmitted comments opposing the proposal’s overly burdensome, costly and punitive approach to regulating GHG emissions of federal contractors. While ÀÏÅ£Ó°ÊÓunderstands the need for sensible environmental policies that balance the protection of the environment with the costs that compliance with these regulations requires, the comments outline how the proposed rule fails to strike that balance.

The FAR is expected to issue a final rule by .

National Labor Relations Board

Joint Employer

On Sept. 6, 2022, the NLRB  a , which would rescind and replace the ABC-supported 2020 . As NLRB members Marvin E. Kaplan and John F. Ring , the proposed rule “would not merely return the Board to the Browning-Ferris Industries standard but would implement a standard considerably more extreme than BFI.” ÀÏÅ£Ó°ÊÓwas a of the expanded definition of joint employer that was created by the NLRB’s 2015 BFI decision, and has supported legal and legislative efforts to restore the standard that was in place for more than 30 years.

On Dec. 7, ÀÏÅ£Ó°ÊÓsubmitted comments to the NLRB urging the Board to withdraw the new proposed rule and retain the current 2020 NLRB final rule, which provides clear criteria for companies to apply when determining status.

In the comments, ÀÏÅ£Ó°ÊÓargued that the new proposal will greatly expand joint-employer liability by trying to make indirect or even just reserved, unexercised control sufficient to trigger joint-employer status. This overbroad joint-employer standard will have an adverse impact not only on our member contractors but also on the overall economy.

Further, the proposal will cause confusion and impose unnecessary barriers and burdens on contractor and subcontractor relationships throughout the construction industry. As a result, contractors may be vulnerable to increased liability, making them less likely to hire subcontractors, most of which are small businesses.

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Election Protection Rule

On Feb. 2, 2023, ÀÏÅ£Ó°ÊÓsubmitted comments to the NLRB opposing its on Representation-Case Procedures, which addresses election-blocking charges, voluntary recognition and construction industry bargaining relationships. The proposal would rescind the , which is intended to “better protect employees’ statutory right of free choice on questions concerning representation.”

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Federal Trade Commission

Ban on Noncompete Agreements

On April 19, 2023, ÀÏÅ£Ó°ÊÓsubmitted comments urging the Federal Trade Commission to withdraw its unprecedented to ban all noncompete agreements nationwide. ÀÏÅ£Ó°ÊÓargued that the FTC lacks the statutory or constitutional authority to issue this proposed rule and regulate competition in the market—there is no congressional authorization for such action. Recent U.S. Supreme Court cases indicate this will likely be viewed by the courts as improper delegation of legislative authority.

ÀÏÅ£Ó°ÊÓmembers have valid business justifications for utilizing noncompete agreements, such as protecting confidential information and intellectual property. This new rule will have a harmful effect on their companies, as well as their employees, and force companies to rethink their compensation and talent strategies. Ultimately, this vastly overbroad rule will invalidate millions of reasonable contracts around the country that are beneficial for both businesses and employees.

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Additional Rules To Monitor Include:

Environmental Protection Agency

—The EPA has withdrawn this proposed rule. However, the agency has announced its intent to issue a new final rule by Sept. 1 in light of the Sackett Supreme Court decision.

Council on Environmental Quality

—Proposed rule, June 2023

More information on these and other rulemakings can be found in . ÀÏÅ£Ó°ÊÓwill continue to provide updates on these and other rulemakings in Newsline.