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老牛影视has听prepared a summary of Biden administration regulatory actions of interest to 老牛影视members by agency.听 U.S. Department of Labor
Occupational Safety and Health Administration
Improve Tracking of Workplace Injuries and Illnesses
On July 21, 2023, the U.S. Department of Labor鈥檚 Occupational Safety and Health Administration issued its听, which will undo the ABC-supported provisions of the听听promulgated under the Trump administration and reprise the听. The final rule becomes effective on Jan. 1, 2024, for certain employers and听OSHA intends to make much of the data it collects publicly available online.
In a听press release, 老牛影视announced its opposition to the final rule. 鈥淯nfortunately, the Biden administration is moving forward with a final rule that does nothing to achieve OSHA鈥檚 stated goal of reducing injuries and illnesses,鈥� said Ben Brubeck, 老牛影视vice president of regulatory, labor and state affairs. 鈥淚nstead, the final rule will force 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.鈥�
Learn more about the final rule.
听In June 2022, 老牛影视submitted comments urging OSHA to withdraw the proposed rule.
Heat Injury and Illness Prevention in Indoor and Outdoor Settings
On July 27, 2023, OSHA issued听听to remind employers of their obligation to protect workers against heat illness or injury in outdoor and indoor workplaces.
The department also announced that OSHA will intensify its enforcement where workers are exposed to heat hazards, with increased inspections in high-risk industries like construction and agriculture. These actions will fully implement the agency鈥檚 National Emphasis Program on heat, announced in April 2022, to focus enforcement efforts in geographic areas and industries with the most vulnerable workers.
OSHA鈥檚 actions come after President Joe Biden announced a听听aimed at protecting workers from the impact of extreme heat, including asking the DOL to issue a first-ever hazard alert for heat.
老牛影视strongly supports worker safety and protection from heat injury and illness, while maintaining flexibility for the fluid nature of the construction environment. Employers play a key role in providing training and awareness regarding heat protection, and 老牛影视will continue to support members in ensuring preparedness for heat-related issues through a听wide range of resources.
OSHA Actions Related to Heat Illness and Prevention:
On Oct. 27, 2021, OSHA issued an听, which requested information on how to implement regulations to prevent workers from hazardous heat.听ABC, as a steering committee member of the听, submitted听听in response to the ANPRM on Jan. 26, 2022.
On April 12, 2022, OSHA announced a听National Emphasis Program on Outdoor and Indoor Heat-Related Hazards, which sets out a targeted enforcement effort and reiterates OSHA鈥檚 compliance assistance and outreach efforts.
On June 22, 2023, OSHA听announced听it听will be holding听听(also known as a SBREFA panel) meetings to gather input on a possible Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings听rule. Learn more about the SBREFA session schedule (refer to right side of webpage).
Worker Walkaround Representative Designation Process
On Aug. 30, OSHA issued听a proposed rule on听, which would allow an employee to choose a third-party representative, such as an outside union representative, to accompany an OSHA inspector into nonunion facilities.
老牛影视plans to submit comments opposing the proposal by the deadline of Oct. 30, unless an extension is granted. 老牛影视members are also encouraged to submit comments on .
To learn more about the rule and what employers can do to prepare,听register听for听ABC鈥檚 members-only webinar on OSHA developments affecting the construction industry on Sept. 20 at 2 p.m. ET. In addition, see 老牛影视general counsel鈥檚, Littler Mendelson鈥檚,听 of the proposal.听
鈥溊吓Ｓ笆觟s deeply disappointed that the Biden administration is trying to revive a failed Obama-era initiative, which was bad policy then and is bad policy now,鈥澨齭aid Ben Brubeck, 老牛影视vice president of regulatory, labor and state affairs.听鈥淭his proposal does nothing to promote workplace safety听and it will have a substantial negative impact on the rights of employers and their employees.鈥�
鈥淏y allowing outside union representatives access to nonunion employers鈥� private property, OSHA is injecting itself into labor-management disputes and casting doubt on its status as a neutral enforcer of the law,鈥� said Brubeck. 鈥淯nfortunately, many outside union organizer representatives have a biased agenda that is not focused on safety or health, which could distract OSHA inspectors from their primary purpose of workplace safety.
鈥淥SHA can have a bigger impact on jobsite safety by fostering positive partnerships with employers and promoting safety practices that produce results," said Brubeck.听"For example, in听ABC鈥檚听2023 Safety Performance Report, top-performing STEP participants achieved a 688% improvement in safety performance compared to the U.S. Bureau of Labor Statistics construction industry average in 2022.鈥�
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听老牛影视adamantly opposed, expressing serious concerns. OSHA eventually听.听听
老牛影视will continue to monitor this issue and provide updates as they become available.
Occupational Exposure to COVID-19 in Healthcare Settings
On April 22, 2022, 老牛影视as a member of CISC, submitted听听in response to OSHA鈥檚 request for additional comment on its 鈥減otential provisions or approaches鈥� to a听. CISC opposes OSHA鈥檚 proposal to expand coverage under any promulgated final rule and include certain construction work in health care settings.
老牛影视also submitted听听on April 22 as a steering committee member of the听. The CWS believes unequivocally that OSHA is not permitted to, and must not, issue a permanent standard after having听.听
, it has not yet been issued.
Personal Protective Equipment in Construction
On July 20, 2023, OSHA issued a听听clarifying the requirements for the fit of personal protective equipment in construction. 老牛影视plans to submit comments by the deadline of Sept. 18. .
Powered Industrial Truck Design Standard Update
On May 17, 2022, ABC, as a steering committee member of CISC, submitted听听to OSHA voicing compliance and cost concerns on the听proposed rule on powered industrial trucks design standard update.
According to the regulatory agenda,听.
Welding in Construction Confined Spaces
In 2023, OSHA intends to issue a听听to amend the Welding and Cutting Standard in construction to eliminate any perceived ambiguity about the definition of 鈥渃onfined space鈥� that applies to welding activities in construction.
Procedures for the Use of Administrative Subpoenas听
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.
While , it has not yet been issued.
Infectious Diseases
In March 2024, OSHA intends to issue a听 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 Aug. 23, the U.S. Department of Labor officially published its final rule,听, in the Federal Register. The regulation鈥檚 drastic revisions to existing rules regarding government-determined听prevailing wage rates that must be paid to construction workers on federal and federally assisted construction projects funded by taxpayers will now take effect on Oct. 23.
老牛影视issued a听, stating: 鈥淭his is yet another Biden administration handout to organized labor on the backs of taxpayers, small businesses and the free market,鈥� said 老牛影视Vice President of Regulatory, Labor and State Affairs Ben Brubeck. 鈥淯nfortunately, the DOL鈥檚 final rule disregards the feedback of 老牛影视contractors, construction industry stakeholders and thousands of small businesses urging the withdrawal of this unnecessary, costly and burdensome regulation.鈥澨�
All contracts entered into after Oct. 23 will be subject to the new rule鈥檚 provisions. Additionally, in certain situations the rule may apply to existing contracts. This includes if a contract is changed to include substantial Davis-Bacon-covered work not within the scope of the original contract, if an option to extend a contract鈥檚 term is exercised and for ongoing contracts not tied to completion of a particular project.
For more information on the final rule, see ABC鈥檚听previous Newsline article, 老牛影视general counsel Littler Mendelson鈥檚听听and ABC鈥檚 online resources at听abc.org/davisbacon.
老牛影视also held a members-only webinar on the final rule on Aug. 21, and the recording is now available on听ABC鈥檚 Academy.
Further, the DOL has provided听
Independent Contractor
In January 2021, the Trump-era DOL issued an independent contractor final rule under the Fair Labor Standards Act, which 老牛影视. The 2021 final rule placed emphasis on two 鈥渃ore鈥� factors鈥攁 worker鈥檚 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 老牛影视and other industry associations. On March 26, 2021, ABC, the 老牛影视Southeast Texas chapter and the Coalition for Workforce Innovation听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鈥檚 efforts to delay and rescind the听 in that case. Under a听听applauded by ABC, the ABC-supported听听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听a new proposed rule to rescind and replace the ABC-supported听2021 final rule on independent contractors. The appeal is now in abeyance awaiting the DOL鈥檚 final rule.
On Dec. 13, 老牛影视submitted听comments opposing the DOL鈥檚听new proposed rule. In the comments, 老牛影视argued that the proposal听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.
While a final rule was targeted for release in August 2023, it has not yet been issued.
Overtime
On Sept. 8, the DOL published听a new听that would alter overtime regulations under the Fair Labor Standards Act. The proposal increases the minimum salary level threshold to $55,068 annually for a full-year worker听and automatically updates the threshold every three years.
老牛影视will submit听comments in opposition to the proposed rule by the comment deadline of Nov. 7, unless an extension is granted. 老牛影视members are also encouraged to submit comments on .
To learn more about the rule鈥檚 proposed changes, see ABC鈥檚 Newsline article from Sept. 6. In addition, ABC鈥檚 general counsel, Littler Mendelson, has prepared an听听of the proposal.
鈥溊吓Ｓ笆觟s disappointed that the DOL is moving forward with a proposed overtime rule since multiple industries, like construction, are still grappling with the lingering economic consequences of inflation, global supply chain disruptions, rising materials prices and workforce shortages, all of which push operational costs ever higher,鈥� said Ben Brubeck, 老牛影视vice president of regulatory, labor and state affairs, in a听.
鈥淚t is unfortunate that the DOL did not listen to our repeated requests to abandon or postpone issuance of the proposed overtime rule until the current economic situation stabilizes or improves, allowing employees and employers to fully navigate the paradigm shift of work in America without new unnecessary and costly red tape,鈥� said Brubeck.
In 2016, the Obama administration 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听blocking the rule from taking effect.
Nondisplacement of Qualified Workers Under Service Contracts
On Aug. 15, 2022, 老牛影视submitted听comments听to the听DOL identifying a number of concerns with its听, which would implement听.
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鈥橦ara 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.
老牛影视believes that, due to conflicts between the DOL鈥檚 proposal and the statutory language of the SCA, the proposed rule must be withdrawn in its entirety. Further, 老牛影视is disappointed that the DOL鈥檚 new proposal fails to address any of ABC鈥檚 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.
On Sept. 6, 2023, the DOL sent its final rule to the OIRA at OMB for review, which is typically the last step before it is issued.
Office of Labor-Management Standards
Form LM-10 Employer Report
On July 28, the DOL鈥檚 Office of Labor-Management Standards published its听, which adds a checkbox to the Form LM-10 report requiring certain reporting entities to indicate whether such entities were federal contractors or subcontractors in their prior fiscal year, and two lines for entry of filers鈥� unique entity identifier and federal contracting agency or agencies, if applicable.听The revision will be effective for reports filed on or after Aug. 28, 2023.
In October 2022, 老牛影视submitted a听comment letter听to the DOL opposing the proposed revision, stating 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 鈥渂lacklist鈥� these contractors in future regulations.
Employers must file the Form LM-10 report 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 鈥減ersuader activities.鈥�
Here are DOL resources on the final revision to the Form LM-10 Employer Report:
Continue to monitor听Newsline听for any new developments on this topic.
Office of Apprenticeship
National Apprenticeship System Enhancements
On July 31, 2023, the DOL鈥檚 Office of Apprenticeship sent a on National Apprenticeship System Enhancements to OMB鈥檚 OIRA for review.听The text has not yet been made public. However, according to the regulatory agenda, the would overhaul the government-registered apprenticeship system, with the stated goal of 鈥渆nhancing 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.鈥澨�
On May 9, an ABC-led coalition of construction and business associations submitted a letter to the Advisory Committee on Apprenticeships opposing the committee鈥檚 to the DOL for changes to the GRAP system. These recommendations included a proposal to establish a new 鈥淨uality Seal鈥� program to give preferential treatment to GRAPs meeting certain requirements.
U.S. Department of the Treasury
Inflation Reduction Act Prevailing Wage and Apprenticeship Regulations
On Aug. 29, the U.S. Treasury Department鈥檚 Internal Revenue Service released a听听and听on provisions of the听ABC-opposed听, which will affect the developers, contractors and workers that are building clean energy projects eligible for more than $270 billion in federal tax credits. To learn more details about the proposed rule, see ABC鈥檚 Newsline article.
The Treasury鈥檚 Notice of Proposed Rulemaking, Increased Credit or Deduction Amounts for Satisfying Certain Prevailing Wage and Apprenticeship Requirements, proposes regulations clarifying the applicability of tax credits for the construction of private clean energy projects funded by the IRA鈥撯�搃ncluding solar, wind, hydrogen, carbon sequestration, electric vehicle charging stations and more鈥撯�揷onditioned on compliance with controversial prevailing wage and government-registered apprenticeship requirements.
老牛影视issued a听press release on the proposed rule, stating:
鈥淎s is typical in the federal government鈥檚 鈥榬eady, fire, aim鈥� approach to issuing regulations, the initial IRS听听and FAQs on the IRA鈥檚听听and听听requirements left many unanswered questions and created confusion that has needlessly stalled the groundbreaking of clean energy projects this year,鈥� said Ben Brubeck, 老牛影视vice president of regulatory, labor and state affairs. 鈥淭his NPRM is a key step, welcomed by developers, taxpayers, contractors and subcontractors, who for months have been asking for clear and specific guidance on how these new provisions will be implemented. Developers can then decide whether the tax credits are worth the new and significant risks and penalties, and large and small-business contractors and subcontractors can decide whether to bid on and perform such work.鈥�
鈥淯nfortunately, we are months away from a final rule and the industry is unlikely to receive the clarity and confidence it needs to fully leverage the tax credits to break ground on clean energy construction projects until then,鈥� said Brubeck.
老牛影视is conducting a thorough review of the 129-page rulemaking and plans to address concerns with the proposed rule in formal comments due to the IRS/Treasury by Oct. 29. 老牛影视also encourages 老牛影视members and stakeholders to participate in this rulemaking and comment on the proposed rule by Oct. 29. 老牛影视will survey its members on key aspects of the proposed rule to help inform these comments.
In addition, 老牛影视encourages 老牛影视members and other contractors to connect with more than听听听that can help contractors meet IRA apprenticeship requirements and win contracts for clean energy projects seeking the full IRA tax credits.
老牛影视is also hosting an on Sept. 14 and will engage in additional industry educational efforts.
Stakeholders can review 老牛影视and government resources on the IRA tax credits for clean energy projects at听.
Federal Acquisition Regulation Council
Use of Project Labor Agreement for Federal Construction Projects听
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听Feb. 15 letter听to the White House and a Feb. 28 letter to Congress highlighting concerns with President Biden鈥檚 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, 老牛影视 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.
老牛影视condemned the proposal and included the results of its Sept. 7, 2022, survey of 老牛影视contractor members鈥� 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.
On Sept. 7, 2023, the FAR sent its to the OIRA at the OMB for review, which is typically the last step before it is issued.
Disclosure of Greenhouse Gas Emissions and Climate-Related Financial Risk
On Nov. 14, 2022, the FAR Council issued a听听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, 老牛影视submitted听comments opposing the proposal鈥檚 overly burdensome, costly and punitive approach to regulating GHG emissions of federal contractors. While 老牛影视understands 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听听a听, which听would rescind and replace the ABC-supported 2020听. As NLRB members Marvin E. Kaplan and John F. Ring听, the proposed rule 鈥渨ould not merely return the Board to the听Browning-Ferris Industries听standard but would implement a standard听considerably more extreme听than听BFI.鈥澨吓Ｓ笆觲as a听of the expanded definition of joint employer that was created by the NLRB鈥檚 2015听BFI decision, and has听supported听legal and legislative efforts to restore the standard that was in place for more than 30 years.
On Dec. 7, 老牛影视submitted comments听to the NLRB听urging the Board to withdraw the new听proposed rule and retain the current 2020 NLRB final rule,听which provides clear criteria for companies to apply when determining status.
In the comments, 老牛影视argued 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.听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.
鈥楢mbush鈥� Election Rule
Despite being litigated for years, the Biden administration鈥檚 NLRB has revived controversial policy from the Obama era in the form of its听. The听, issued without notice and the opportunity to comment,听essentially restores provisions of the听听and rescinds the remaining ABC-supported provisions of the听. The rule will apply to representation petitions filed on or after Dec. 26, 2023, and employers听will have less time to respond to representation petitions.
鈥淭he Board鈥檚 efforts to again reduce the amount of time between when a union files a representation petition and an election takes place听imposes unnecessary urgency on employers, leaving them susceptible to violations of their due process rights and deprives employees of the time needed to become fully informed before deciding whether or not to unionize,鈥� said Ben Brubeck, 老牛影视vice president of regulatory, labor and staff affairs. 鈥淯ltimately,听the rule听infringes on the rights of employers and employees to a fair pre-election process and听will have a particularly adverse impact on small construction firms, which typically do not employ legal counsel."
To learn about the changes included in the听, see ABC鈥檚 Newsline article on Sept. 5. See also the听听of prior and new Representation Case Procedures as well as the听听for more information.
Additionally,听ABC鈥檚 general counsel Littler Mendelson has prepared an of the final rule.
Finally, 老牛影视will be offering an 老牛影视members-only webinar on NLRB recent decisions and rules. Details will be posted soon in听Newsline.
老牛影视vehemently opposed the 2014 rule and听filed a legal challenge against it.听
Federal Trade Commission
Ban on Noncompete Agreements
On April 19, 2023, 老牛影视submitted comments urging the Federal Trade Commission to withdraw its unprecedented to ban all noncompete agreements nationwide. 老牛影视argued that the FTC lacks the statutory or constitutional authority to issue this proposed rule and regulate competition in the market鈥攖here 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.
老牛影视members 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
On Aug. 29, the U.S. Environmental Protection Agency and Army Corps of Engineers issued a听听and听听regarding amendments to the definition of 鈥渨aters of the United States鈥� subject to Clean Water Act regulation. This rule is aimed at bringing the January 2023 WOTUS final rule into compliance with the U.S. Supreme Court鈥檚 May 25 decision in Sackett v. Environmental Protection Agency.
老牛影视issued a听statement听in response to the rule, with Vice President of Regulatory, Labor and State Affairs Ben Brubeck stating:
鈥淯nfortunately, these revisions fail to fully implement the U.S. Supreme Court鈥檚 ruling in Sackett v. Environmental Protection Agency, which placed clear boundaries on the scope of the federal government鈥檚 authority while maintaining reasonable environmental protections for America鈥檚 waterways.鈥�
The rule implements some of the key wins from the Sackett decision, including by eliminating the 鈥渟ignificant nexus鈥� test. However, it fails to fully implement the court鈥檚 opinion, including on the definition of 鈥渞elatively permanent鈥� waters, and may result in continued regulatory uncertainty.
The final rule took effect on Sept. 8, 2023, after being published in the Federal Register. The amended version of the听听is now in effect, except in states where it is currently blocked by a preliminary injunction. Read more about the final rule.
Council on Environmental Quality
National Environmental Policy Act Implementing Regulations Revisions Phase 2鈥擜 to further revise NEPA regulations of federal environmental reviews was issued on July 31. Read more.
老牛影视will continue to provide updates on these and other rulemakings in听Newsline.