老牛影视Regulatory Roundup
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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听went into effect 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�
In June 2022, 老牛影视submitted听comments听urging OSHA to withdraw the听proposed rule.
More Information:
Heat Injury and Illness Prevention in Indoor and Outdoor Settings
On August 30, 2024, the U.S. Department of Labor鈥檚 Occupational Safety and Health Administration published its . OSHA鈥檚 proposed rule would apply to all employers conducting outdoor and indoor work in all general industry, construction, maritime and agriculture sectors where OSHA has jurisdiction and require employers to develop programs and implement controls to protect employees from heat hazards. Read 础叠颁鈥檚 release on the proposed rule.
Elements of the proposal include the following:
The deadline for the public to on the proposed rule is December 30. 老牛影视will be submitting detailed comments.
OSHA resources on the proposed rule:
Background:
On Oct. 27, 2021, OSHA issued an , which requested information on how to implement regulations to protect 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鈥檚 compliance assistance and outreach efforts.
On July 27, 2023, OSHA issued 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. On Sept. 29, OSHA issued to protect workers from the effects of heat.
In December 2023, 老牛影视submitted comments as a steering committee member of the and the in response to OSHA鈥檚 potential standard for Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings following its review of the and the . In September, the SBAR Panel hosted six video conferences to gather input from small entity representatives. An 老牛影视member participated as a SER during one of the video conferences. The panel鈥檚 final report was issued on Nov. 3.
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 wide range of resources.
Worker Walkaround Representative Designation Process
On May 21, 老牛影视joined the U.S. Chamber of Commerce and a coalition in business groups in filing a in the U.S. District Court for the Western District of Texas, Waco Division against the U.S. Department of Labor鈥檚 Occupational Safety and Health Administration鈥檚 . Read the announcing the lawsuit.
Effective on May 31, the final rule will allow employees to choose a third-party representative, such as an outside union representative or community organizer, to accompany an OSHA safety inspector during site inspections, regardless of whether the workplace is unionized or not.
Now, construction employees and employers could face serious safety concerns because the final rule has the potential to allow anyone on a jobsite. There simply is no business case for this final rule and no benefit during a compliance inspection.
By allowing outside union agents 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. This final rule negatively impacts the rights of employers while simultaneously ignoring the rights of the majority of employees who have not authorized a union to represent them. OSHA鈥檚 rule also poses unnecessary risk to the individual joining the inspection and others on the jobsite if the authorized person is not trained to safely walk a construction jobsite. The rule does not include any requirement that the authorized person be equipped or conduct themselves to the same standards as OSHA safety inspectors. Further, the final rule fails to answer who is legally responsible if the third party gets injured during the inspection or harms someone else.
In addition to the lawsuit, on May 17, ABC, as a steering committee member of the , and 57 other employer organizations sent a to members of the U.S. House of Representatives urging them to pass Rep. Mary Miller鈥檚, R-Ill., Congressional Review Act resolution to nullify the final rule.
The CWS letter states, 鈥淭he resolution is vital to safeguarding the mission of workplace health and safety inspections. Without this legislation, OSHA CSHOs will be forced into an impossible position of policing labor disputes, for which they are simply unequipped. It would protect employers against individuals looking to further their own agendas and safeguard their property rights. It would also protect workers鈥� right to have their voice heard when determining workplace representation.鈥�
Background on the final rule:
On March 29, OSHA announced its and 老牛影视issued a news release opposing the rule.
OSHA Resources on the final rule:
On Nov. 13, 2023, 老牛影视submitted urging the DOL to withdraw its proposed rule. 老牛影视also signed on to comments submitted by the and
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
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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.听.
On Sept. 18, ABC, as a steering committee member of the Construction Industry Safety Coalition, submitted听comments听to OSHA in response to the PPE proposed rule and urged the agency to clarify what it means by the terms 鈥減roperly fit鈥� and 鈥渁dditional hazards鈥� and that the clarification includes specificity so that covered industries better understand their compliance obligations. In addition, the CISC urges OSHA to clarify how it will enforce this regulation and delineate objective measures regarding what constitutes 鈥渋mproper fit.鈥�
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.
Welding in Construction Confined Spaces
In 2025, 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.
Infectious Diseases
In 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.
Wage and Hour Division
Updating the Davis-Bacon and Related Acts Regulations
On Aug. 23, 2023 the U.S. Department of Labor officially published its final rule, , 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 took effect on Oct. 23.
听
老牛影视issued a statement opposing the new rule. All contracts entered into after Oct. 23 are 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.
On Nov. 7, 老牛影视and the Southeast Texas Chapter announced the filing of a complaint in the U.S. District Court for the Eastern District of Texas, challenging the DOL鈥檚 final rule.
老牛影视issued a press release on the challenge, stating:
鈥淔ar from 鈥榰pdating鈥� the DOL鈥檚 enforcement of the Davis-Bacon Act, the final rule returns to failed policies of the 1970s and unlawfully expands coverage of prevailing wage requirements onto new projects and industries and increases its regulatory burden on small construction contractors working on federally funded contracts,鈥� said Ben Brubeck, 老牛影视vice president of regulatory, labor and state affairs. 鈥淭he DOL鈥檚 final rule forces 老牛影视to take legal action to address its numerous illegal provisions and protect its members, the free market and taxpayers from the devastating impacts of this regulation.鈥澨�
老牛影视applauded a June 26, 2024, decision by the U.S. District Court for the Northern District of Texas granting a nationwide preliminary injunction that blocks some provisions in the U.S. Department of Labor鈥檚 final rule expanding the Davis-Bacon Act.
Associated General Contractors of America鈥檚 asserted that the Biden administration lacks the legal authority to expand the law to cover manufacturing facilities miles away from projects and delivery truck drivers spending any amount of time on a jobsite, or to retroactively impose the measure on already-executed contracts, among other things. The court granted AGC鈥檚 motion for a nationwide preliminary injunction, temporarily blocking the AGC-challenged provisions.
鈥淭he preliminary injunction issued in response to AGC鈥檚 federal lawsuit is a victory for the construction industry and the rule of law. It strikes down the Biden administration鈥檚 effort to do an end-run around Congress via regulatory action that benefits special interests,鈥� said Ben Brubeck, 老牛影视vice president of regulatory, labor and state affairs.
鈥湸〉溻�檚 pending federal lawsuit, filed in East Texas, targets other provisions in the DOL鈥檚 extreme overhaul of more than 50 Davis-Bacon Act regulations that undermine commonsense reforms put in place by the Reagan administration. We are hopeful 础叠颁鈥檚 lawsuit will also prevail over the Biden administration鈥檚 regulatory overreach,鈥� said Brubeck.
For more information on the final rule, see 础叠颁鈥檚听 previous Newsline article , 老牛影视General Counsel Littler Mendelson鈥檚听 听and 础叠颁鈥檚 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 the 老牛影视Academy.
On Oct. 19, 老牛影视member Mario Burgos testified on behalf of the association before the U.S. House Committee on Small Business to urge lawmakers to rein in the Biden administration鈥檚 inscrutable and burdensome wage determination practices under the Davis-Bacon and Related Acts.
On Nov. 15, Rep. Lloyd Smucker, R-Pa., introduced a resolution ( ) under the听听providing for congressional disapproval of the final rule. Smucker鈥檚听 听promoting the CRA highlights opposition from lawmakers, taxpayer watchdogs and dozens of construction industry groups to the rule. If a CRA joint resolution of disapproval is approved by both houses of Congress and signed by the president, or if Congress successfully overrides a presidential veto, the rule at issue cannot go into effect or continue in effect. Rep. Smucker鈥檚 CRA is not likely to succeed in the current Congress.
Further, the DOL has provided
Independent Contractor
On March 25, 2024, the U.S. House of Representatives Committee on Education and the Workforce passed听 , the Congressional Review Act resolution introduced by Rep. Kevin Kiley, R-Calif., providing for congressional disapproval of the rule submitted by the U.S. Department of Labor relating to听 , in a听. 老牛影视sent a听letter in support听of the resolution to the committee ahead of the vote, urging members to report it for a full house vote. 老牛影视also sent a听 letter听to all members of the House and U.S. Senate urging them to pass the CRA to nullify the DOL鈥檚 rule, which went into effect on March 11.
On March 5, ABC, its Southeast Texas chapter, the 听and five other organizations filed an 听in听the U.S. District Court for the Eastern District of Texas, arguing that the 2024 independent contractor final rule听is unlawful and a听violation of the Administrative Procedure Act. 鈥淩eplacing the commonsense 2021 final rule was the wrong move by the DOL and has created an ambiguous standard for determining employee or independent contractor status under the Fair Labor Standards Act,鈥� said 老牛影视in听 .
In January, ABC, its Southeast Texas chapter, CWI听and the Financial Services Institute 听in the U.S. Court of Appeals for the Fifth Circuit requesting that it lift the stay of appeal and remand the case to the U.S. District Court for the Eastern District of Texas so that the district court may consider whether the 2024 final rule complies with the APA in its attempt to rescind and replace the current 2021 final rule. In 2022, the district court found that the DOL violated the APA when it first attempted to delay and later withdraw the 2021 final rule. The court vacated these efforts. 鈥淭he Biden administration cannot be allowed to undermine flexible work opportunities for millions of Americans who choose to work independently,鈥� said 老牛影视in.
On Jan. 9, the DOL听 the independent contractor final rule, which rescinded the听 听and replaced it with a confusing听multifactor analysis to determine whether a worker is an employee or an independent contractor. Immediately following the release of the final rule, 老牛影视issued a听 opposing it, saying that "it will cause workers who have long been properly classified as independent contractors in the construction industry to lose opportunities for work.鈥澨�
DOL resources on the final rule:
To learn more about the rule, watch the ABC-members only听 archived webinar in the Academy, "Learn What the DOL's Final Independent Contractor Rule Means for 老牛影视Members."
Overtime
On June 28, 2024, the U.S. District Court for the Eastern District of Texas in the Texas Attorney General's case challenging the U.S. Department of Labor's final rule on . The judge in the case issued a limited preliminary injunction blocking implementation of the rule for employees of the state of Texas only.
For the rest of the employer community in Texas and throughout the nation, the rule went into effect on July 1, which increases the minimum salary threshold for exemption to $43,888, and the threshold for highly compensated employees increases to $132,964.
Issued on April 23, the increases the minimum annual salary level threshold for exemption in two phases: from the current level of $35,568 to $43,888 on July 1, 2024, and to $58,656 on Jan. 1, 2025. In addition, the threshold for highly compensated employees increases from the current level of $107,432 to $132,964 on July 1, 2024, and then to $151,164 on Jan. 1, 2025. Salary thresholds will then be automatically updated every three years, regardless of economic circumstances. 老牛影视issued a opposing the rule.
Overtime resources:
On May 22, 老牛影视joined a coalition of business groups in a complaint in the U.S. District Court for the Eastern District of Texas, Sherman Division, challenging the DOL鈥檚 overtime rule. and 老牛影视will continue to provide updates on any new developments regarding the pending legal challenges.
Virtually all of 础叠颁鈥檚 members employ workers who qualify for exempt status, and like the unlawful 2016 overtime rule, the DOL鈥檚 2024 rule will reclassify a substantial amount of 老牛影视member employees who currently qualify for exempt status as nonexempt. This will disrupt the entire construction industry, specifically harming small businesses, as the rule will greatly restrict employee workplace flexibility in setting schedules and hours, hurting career advancement opportunities.
In addition, the 2024 rule鈥檚 radical increase in the salary threshold for exemption will further complicate the current economic outlook. Multiple industries, like construction, are grappling with uncertain economic conditions such as inflation, supply chain disruptions, high materials prices and workforce shortages, all of which push operational costs ever higher. Specifically, 老牛影视estimates that the construction industry must hire more than half a million additional workers in 2024 to meet demand. The rule鈥檚 triennial automatic indexing provision will exacerbate the harmful impact on businesses and add to rampant inflation that is already harming the economy.
On Nov. 7, 2023, 老牛影视submitted comments to the DOL in response to the proposed rulemaking, calling on the DOL to withdraw it. 老牛影视also signed onto criticizing the overtime proposed rule, joining 244 national, state and local organizations representing employers from a wide range of private industry and public, nonprofit and education sectors.
Nondisplacement of Qualified Workers Under Service Contracts
On Aug. 15, 2022, 老牛影视submitted 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 础叠颁鈥檚 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 Dec. 14, 2023, the DOL issued the final rule, which is effective Feb. 12, 2024, and will apply to solicitations issued on or after the effective date of the final regulations issued by the Federal Acquisition Regulatory Council. Learn more about DOL鈥檚 final rule.
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 is in effect听for reports filed on or after Aug. 28, 2023.
In October 2022, 老牛影视submitted a comment letterto 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 Dec. 14, 2023, the DOL鈥檚 Office of Apprenticeship a that would make significant and controversial revisions to the National Apprenticeship System.
On Dec. 18, 老牛影视issued a press release in response to the ABC-opposed proposal:
鈥溊吓Ｓ笆觭upports government-registered apprenticeship programs and offers more than 450 such education programs across the country as part of its all-of-the-above approach to meet the workforce needs of the construction industry,鈥� said Ben Brubeck, 老牛影视vice president of regulatory, labor and state affairs. 鈥溊吓Ｓ笆觟s thoroughly reviewing the Biden DOL鈥檚 overreaching, 779-page proposal and is concerned that aspects of the proposed rule will limit the number of apprentices and employers participating in GRAPs.
鈥淭he misguided proposal will discourage employer participation in the GRAP system by adding more bureaucracy and paperwork requirements while also eliminating flexible competency-based approaches to workforce development that benefit apprentices and employers,鈥� said Brubeck. 鈥淎s currently written, the Biden鈥檚 proposal threatens to undermine significant investments recently made by taxpayers in infrastructure, clean energy and manufacturing projects procured by government and private owners.鈥�
On June 17, 2024, the DOL sent the final rule to the Office of Information and Regulatory Affairs at the Office of Management and Budget for final review, the last step in the regulatory process before implementation. .
Results from 础叠颁鈥檚 February 2024 survey of contractors and 老牛影视chapter GRAP providers confirmed that the proposed rule will strongly discourage GRAP participation, with 96% of respondents stating new recordkeeping and reporting requirements will make them less likely to participate in or start their own GRAP.
础叠颁鈥檚 2024 analysis of DOL data found that construction industry GRAPs enrolled only 250,000 apprentices and graduated just 45,000 apprentices in 2023, confirming that current GRAP system is unable to meet construction industry workforce needs on their own.
On March 18, 老牛影视submitted 45 pages of comments on the proposed rule and released a statement, criticizing the proposal鈥檚 limitations on flexibility and calling on the DOL to withdraw the rule鈥檚 concerning provisions. 老牛影视members also submitted at least 1,450 unique comments opposing the rule via 础叠颁鈥檚 grassroots campaign utilizing 础叠颁鈥檚 Action app and Action Center.
老牛影视also signed
On March 6, Vice President Kamala Karris and U.S. Department of Labor Acting Secretary Julie Su announced President Joe Biden鈥檚 new , with the stated goal of expanding the usage of government-registered apprenticeship programs by the federal government. The order, as outlined in 础叠颁鈥檚 Newsline article, directs federal agencies to identify where they can implement new requirements or incentives for federal contractors and recipients of federal financial assistance to employ workers who are active participants or graduates of a GRAP.
While specific details on how these new requirements will be implemented are not yet available until a rulemaking is completed, in a March 6 statement 老牛影视expressed concerns that any new mandates or incentives on federal contracts and grants will reduce competition from contractors that choose not to participate in the GRAP system or lack access to these programs.
U.S. Department of Treasury
Inflation Reduction Act Prevailing Wage and Apprenticeship Regulations
On June 18, the U.S. Treasury Department鈥檚 Internal Revenue Service announced its , which requires private developers to follow onerous , prevailing wage and apprenticeship policies when building clean energy projects funded by more than $270 billion in tax credits via the ABC-opposed Inflation Reduction Act. Read 础叠颁鈥檚 news release opposing the final rule.
Unfortunately, many concerning provisions of the proposed rule flagged by industry and clean energy advocates during the comment period were not appropriately addressed in the final rule, which increases risk and uncertainty for developers seeking tax credits and contractors delivering these important projects. Coupled with construction materials inflation of more than 40% since February 2020 and a labor shortage, this Biden administration鈥檚 latest regulation means clean energy projects are much more expensive, and many of those projects will be mothballed or cancelled.
According to the final rule, developers must certify that their contractors pay all construction workers prevailing wages and benefits determined by the U.S. Department of Labor in accordance with the federal Davis-Bacon Act. Developers must also ensure that contractors utilize apprentices enrolled in government-registered apprenticeship programs for 15% of all construction labor hours performed on a project, among other requirements. Project developers that satisfy both of these new provisions are eligible for a 500% increase in various clean energy construction project tax credits compared to baseline tax credits offered to developers under prior regulations widely used by industry. In addition, developers that require contractors to execute PLAs with labor unions are immune from new monetary penalties if the developer and its contractors fail to meet cumbersome prevailing wage and apprenticeship rules.
Government-mandated PLAs box out almost 90% of the U.S. construction workforce that does not belong to union鈥撯�揳n especially irresponsible decision when the construction industry faces a labor shortage of more than half a million people. In addition, PLA schemes by imposing inefficient work rules and discouraging competition from quality contractors that have been successfully building clean energy projects for decades.
The final rule is effective 60 days after it is be published in the federal register on June 25, 2024, but developers are currently following the previous proposed rule requirements issued by the IRS.
In October 2023, 老牛影视conducted a survey of contractor members regarding the proposed rule. In the survey, 98% of respondents stated that prevailing wage and apprenticeship mandates imposed by the Inflation Reduction Act will make them less likely to bid on clean energy projects. On Oct. 31, 老牛影视utilized this survey data in comments to the U.S. Treasury Department鈥檚 Internal Revenue Service in response to the proposed rule. Read 础叠颁鈥檚 news release on the comments.
老牛影视also led a coalition of 13 construction and business associations in comments urging the IRS to provide regulatory clarity and to abandon its illegal and coercive scheme to push clean energy project developers into requiring PLAs.
老牛影视encourages 老牛影视members and other contractors to connect with more than 400 government-registered apprenticeship programs offered by 老牛影视chapters 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will be issuing additional detailed analysis in the coming weeks to complement the July 11 老牛影视members-only webinar on the final rule. In the interim, 老牛影视members and developers are encouraged to review the IRS , , , , and . The U.S. DOL鈥檚 and the may be of additional interest.
Review additional resources on the IRA tax credits for clean energy projects at
FinCEN鈥檚 Beneficial Ownership Information Reporting Requirements
Effective Jan. 1, 2024, the Corporate Transparency Act requires certain entities, including many small businesses, to report information about the individuals who ultimately own or control them (also known as their 鈥渂eneficial owners鈥�) to the Financial Crimes Enforcement Network, a bureau of the U.S. Department of the Treasury.
A separate regulatory requirement currently requires many financial institutions to also collect beneficial ownership information, or BOI, from certain customers that seek to open accounts as part of federal customer due diligence requirements.
老牛影视has expressed serious concerns with the Treasury鈥檚 FinCen鈥檚 implementation of CTA. FinCEN鈥檚 implementing regulations require millions of small businesses, including nearly every employer with 20 or fewer employees, to report personal information of their beneficial owners and update that information periodically throughout the life of the business.
On March 1, a federal judge for the U.S. District Court for the Northern District of Alabama Northeastern Division ruled that the CTA is unconstitutional. The decision, however, , and all other businesses are still required to adhere to the CTA鈥檚 filing requirements. 老牛影视has called on Congress to examine the ruling and has argued that a stay in enforcement should apply to all affected parties. On March 11, Treasury .
ABC, along with 100 organizations representing millions of small businesses nationwide, sent a letter to Congress strongly supporting legislation introduced by Rep. Warren Davidson, R-Ohio, to repeal the CTA. 老牛影视also to enact the Protect Small Business and Prevent Illicit Financial Activity Act (). The legislation, championed by Sen. Tim Scott, S.C., would delay the onerous CTA filing requirements and accompanying jail time and penalties by one year. A similar bipartisan bill sponsored by Reps. Zach Nunn, R-Iowa, and Joyce Beatty, D-Ohio, late last year 420-1.
Information about FinCEN鈥檚 BOI reporting requirements:
老牛影视encourages members and small business owners to discuss FinCEN鈥檚 BOI reporting requirements with counsel.
Federal Acquisition Regulation Council
Use of Project Labor Agreement for Federal Construction Projects听
On Feb. 4, 2022, President Biden signed听 . Effective Jan. 22, 2024, following a multi-year by the Federal Acquisition Regulatory Council, federal agencies are requiring every prime contractor and subcontractor on a federal construction project of $35 million or more performed within the United States to sign a PLA as a condition of winning a taxpayer-funded contract.
On Dec. 18, 2023, President Biden a 听implementing the PLA mandate on federal projects over $35 million听and the related Dec. 18, 2023, .
On March 28, 2024 老牛影视and the Florida First Coast chapter filed suit against the federal government seeking to overturn the final rule. 础叠颁鈥檚 complaint asserts that President Joe Biden lacks the legal and constitutional authority to impose the mandate as it will injure economy and efficiency in federal contracting and illegally steer construction contracts to certain unionized contractors. 老牛影视issued a press release regarding the challenge, stating:
鈥溊吓Ｓ笆觭eeks a national injunction against President Biden鈥檚 executive overreach, which makes a mockery of federal procurement laws and rewards powerful special interests with government construction contracts at the expense of taxpayers and the principles of fair and open competition in government procurement,鈥� said Ben Brubeck, 老牛影视vice president of regulatory, labor and state affairs. 鈥溊吓Ｓ笆觝as heard from large and small federal contractors鈥攊ncluding firms signatory to union agreements鈥攁nd concerned federal agency contracting officers that the Biden administration鈥檚 controversial PLA policy has already stifled competition and raised costs on federal construction contracts in Florida and across the country. This policy will continue to do so absent a successful legal challenge.鈥�
础叠颁鈥檚 against the rule contains affidavits from 10 large and small nonunion and union federal contractors injured by this rule. 老牛影视expects a ruling on the preliminary injunction in late July or early August.
老牛影视National staff and an 老牛影视member testified at the June 27, 2024, U.S. House Oversight and Accountability Committee鈥檚 subcommittee promoting and mandating PLAs on federal and federally assisted projects. As spotlighted in this recap, the hearing, 鈥淐utting Competition in Contracting: The Administration鈥檚 Pricey Project Labor Agreement Mandate鈥�鈥攈eld by the Subcommittee on Cybersecurity, Information Technology, and Government Innovation鈥攇ave 老牛影视an important platform to shed light on the Biden administration鈥檚 controversial pro-PLA policies.
Previously, on Oct. 18, 2022,听 老牛影视filed extensive formal comments 听in response to the FAR Council鈥檚听ABC-opposed听Aug. 19, 2022听 .
础叠颁鈥檚 opposition to the FAR Council鈥檚 proposed rule was shared by more than听 听and a听听urging the administration to withdraw its proposed rule and other Biden administration schemes pushing government-mandated PLAs on state and local government construction projects receiving federal assistance听 via $260 billion via federal agency infrastructure grant programs听(visit听abc.org/PLAGrants听to learn more).
Learn more about government-mandated PLAs and Biden administration pro-PLA policies via听 础叠颁鈥檚 2024 FAQ document 听and coalition website at听.
According to a听 September 2022 survey听of 老牛影视contractor members, 98% oppose this proposed rule. Additionally, 97% said a construction contract that required a PLA would be more expensive compared to a contract procured via fair and open competition, 99% said they were less likely to bid on a taxpayer-funded construction contract if the bid specifications required the winning firm to sign a PLA with labor unions and 97% of respondents said that government-mandated PLAs decrease economy and efficiency in government contracting.
老牛影视issued an听听that members can use to urge members of Congress to cosponsor the Fair and Open Competition Act to help fight the final rule.
Disclosure of Greenhouse Gas Emissions and Climate-Related Financial Risk
On Nov. 14, 2022, the FAR 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, 老牛影视submitted 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.
Cyberthreat and Incident Reporting and Information Sharing
On Oct. 3, 2023, the Federal Acquisition Regulatory Council issued a on cyberthreat and incident reporting and information sharing aimed at implementing
The proposal, which would apply to contractors doing business with the federal government, would require contractors to take additional steps to ensure effective response to cybersecurity incidents and investigation of potential incidents. The proposal would also require contractors to provide federal law enforcement agencies as well as the contracting agency with full access to applicable information, information systems and contractor employees in response to any cybersecurity incidents.
The FAR鈥檚 attempt to standardize and enhance cybersecurity comes at the same time as the U.S. Department of Defense prepares to update its Cybersecurity Maturity Model Certification program, which will assess defense contractors鈥� compliance and implementation of cybersecurity requirements. was published on Dec. 26, 2023.
On Feb. 26, 老牛影视joined the U.S. Chamber of Commerce and eight other groups in submitting comments on the proposed rule. The organizations called for more clarity (e.g., definitions), expressed concerns about costs and asked questions regarding capacity and other process and organizational issues. The comments urged flexible implementation of CMMC program requirements.
老牛影视will continue to provide resources for complying with federal cybersecurity requirements, including a July 25 webinar on the CMMC available in the 老牛影视Academy and a Cybersecurity Resources Guide.
National Labor Relations Board
Joint Employer
On July 19, 2024, the National Labor Relations Board moved to withdraw its appeal of the U.S. District Court for the Eastern District of Texas鈥� decision to vacate the 2023 Joint Employer final rule, which means the court鈥檚 favorable decision will become final. The Board had appealed the decision on May 7.
On March 8, the district court vacated the 2023 final rule. Under the court鈥檚 decision, the ABC-supported 2020 Joint Employer Final Rule, which provides clear criteria for companies to apply when determining their joint employer status, remains in effect today.
老牛影视issued a release stating, 鈥淲e are pleased the Board decided to withdraw its appeal of the court鈥檚 decision and that the court鈥檚 ruling to block the NLRB鈥檚 radical and overbroad joint employer standard is now final,鈥� said Ben Brubeck, 老牛影视vice president of regulatory, labor and state affairs. 鈥淭he 2023 final rule would have disrupted long-established, efficient operational processes that are followed by construction service providers who work together to build America. And it clearly would have had a harmful effect on a significant segment of the construction industry: small businesses.
鈥淏ecause the ABC-supported 2020 final rule remains in effect, contractors will be better able to work and coordinate with multiple employers without fear of being unexpectedly and unfairly found to be joint employers,鈥� said Brubeck. On Nov. 9, 2023, 老牛影视joined the U.S. Chamber of Commerce and a coalition of business groups in filing a challenging the NLRB鈥檚 final rule for violating the National Labor Relations Act and for acting arbitrarily and capriciously in violation of the Administrative Procedure Act.
鈥楢mbush鈥� Election Rule
Despite years of litigation, the Biden administration鈥檚 NLRB has revived a controversial policy from the Obama era in the form of its听. The听, issued without notice or the opportunity to comment,听essentially restores provisions of the听听and rescinds the remaining ABC-supported provisions of the听. The rule applies听to representation petitions filed on or after Dec. 26, 2023, and employers听will have less time to respond to representation petitions. In response to this move, 老牛影视stated:
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 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听础叠颁鈥檚 Newsline article on Sept. 5.
More information:
Federal Trade Commission
Ban on Noncompete Agreements
In a win for 老牛影视members, on Aug. 20, the U.S. District Court for the Northern District of Texas the Federal Trade Commission from implementing its . The court found that the FTC lacked statutory authority to promulgate the rule and that the rule is arbitrary and capricious. This means the rule will not be enforced or otherwise take effect on Sept. 4, 2024. According to media reports, the FTC is considering appealing the decision. To learn more about the decision, .
老牛影视is extremely pleased with the court鈥檚 decision and has consistently stated that 老牛影视members have valid business justifications for utilizing noncompete agreements, such as protecting confidential information and intellectual property. The new rule would have had a harmful effect on member companies as well as their employees, forcing employers to rework their compensation and talent strategies.
On July 3, the same Texas court issued a limited preliminary injunction and stay of the FTC鈥檚 rule. On May 14, 老牛影视joined a broad group of trade associations in filing an in support of the plaintiffs鈥� request for injunctive relief against the FTC鈥檚 final rule to ban noncompete clauses.
Following the FTC鈥檚 vote on April 23 to finalize the ban on noncompetes rule, 老牛影视issued a release opposing the rule, stating, 鈥淭he final rule to ban all noncompete agreements nationwide鈥攅xcept existing noncompetes for senior executives鈥攊s a radical departure from hundreds of years of legal precedent. Ultimately, this vastly overbroad rule will invalidate millions of reasonable contracts鈥攊ncluding construction project contracts鈥攁round the country that are beneficial for both businesses and employees.鈥�
In April 2023, 老牛影视submitted comments in opposition to the FTC鈥檚 unprecedented to ban noncompetes. 老牛影视also joined the U.S. Chamber of Commerce and 280 business groups in submitting urging the FTC to rescind the proposed rule.
Environmental Protection Agency
Waters of the United States
On Aug. 29, the U.S. Environmental Protection Agency and Army Corps of Engineers issued a and 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 statement 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 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
National Environmental Policy Act Implementing Regulations Revisions Phase 2鈥擜 to further revise NEPA regulations of federal environmental reviews was issued on May 1 and was scheduled to take effect July 1. 老牛影视previously joined a coalition of trade associations in submitting comments opposing the rule, which will unnecessarily delay permitting for critical infrastructure projects. 老牛影视also issued a press release condemning the final rule. Read more.
老牛影视will continue to provide updates on these and other rulemakings in Newsline.