ABC’s Regulatory Alert provides an overview of federally mandated rules, regulations and enforcement actions from the U.S. Department of Labor (DOL), National Labor Relations Board (NLRB), Environmental Protection Agency (EPA) and other federal agencies. Below are brief summaries of current issues, as well as links to more detailed information and guidance. If you have any questions, please email [email protected].

Additional information and resources are available via ABC’s Regulatory Affairs website and ABC’s Newsline.

---

Increased Regulatory Action Anticipated Following 2012 National Elections

Many controversial rulemakings originally slated for 2012 were put on hold due to the upcoming national elections and pressure from ABC and the broader business community. The Obama administration most likely will move ahead with these regulations regardless of the outcome of the November elections. 

If Gov. Romney wins, the Obama administration will immediately attempt to advance as many regulatory priorities as possible before Inauguration Day. If President Obama wins re-election, expect to see an increase in regulatory activity at a slightly more relaxed pace, given that the administration will have four more years to complete its work. 

In the weeks between Election Day and Inauguration Day, ABC will closely monitor all federal rulemaking activity impacting ABC members. Important compliance information and other noteworthy information will be disseminated weekly via ABC’s Newsline. 

---

NLRB Biased Notice Posting Rule, Court of Appeals Delays Implementation

In December 2011, the NLRB issued a final rule that would require employers to display a poster in their workplace that contains a biased and incomplete list of employee rights under the National Labor Relations Act. The “employee rights” notice posting rule has been subject to several legal challenges that assert the NLRB lacked the requisite authority to issue the rule.

On March 2, the U.S. District Court for the District of Columbia ruled the NLRB could mandate the notice posting, but could not impose automatic sanctions for failure to post. On April 13, another federal judge held the entire rule to be invalid.

Parties in both cases appealed the decisions. On April 17, a formal injunction was granted by the U.S. Court of Appeals for the D.C. Circuit preventing the NLRB from implementing the rule pending appeal. The injunction was in response to a request filed by an ABC-led coalition of business groups. Most recently, on Sept. 11, ABC General Counsel Maury Baskin of Venable LLC argued the case before the appeals court.

A final decision in the case is not expected until after the November election. Meanwhile, the current injunction remains in effect, and the NLRB cannot enforce its challenged notice requirement. Employers are not required to display the poster until further notice. For more information on the NLRB poster rule and on the court decisions, visit www.abc.org/nlrbposter. 

---

NLRB Ambush Election Procedures Ruled Invalid, Board Appeals

On Aug. 7, the NLRB filed an appeal against the U.S. District Court for the District of Columbia’s May 14 decision that overturned its ambush election rule. The district court held the rule was invalid because it was adopted without the statutorily required quorum of NLRB members. 

The ambush election rule was a controversial final rule issued in December 2011 that overhauled procedures for union representation elections. Under the rule, the amount of time between when a union filed a representation petition and an election took place would have been reduced from the current average of 40 days to as few as 17 days.

A decision in the appeal is not expected until next year. Meanwhile, the NLRB ambush election rule is invalid and no longer in effect. For more information on the NLRB ambush election rule and on the court decisions, visit www.abc.org/nlrb.

---

Final Rule on “Persuader” Reporting Anticipated Post-Election

Section 203 of the Labor-Management Reporting and Disclosure Act contains federal reporting and disclosure requirements regarding individuals and entities hired by employers “to persuade employees to exercise or not exercise or persuade employees as to the manner of exercising, the right to organize…” 

Section 203(c), better known as the “advice exemption,” has long exempted attorneys, trade associations and other third party advisors from these reporting requirements when they discuss union organizing with an employer without engaging in direct contact with its employees. The employers that utilize these protected services also are currently exempt. 

In June 2011, DOL proposed changes to the current persuader reporting requirements under section 203 that would significantly narrow the advice exemption. Under the proposed rule, the “advice exemption” would no longer extend to most advisors or their employer clients.

The June 2011 proposal has generated serious concern. In September 2011, more than 500 ABC members joined ABC in submitting comments to DOL that asked them to reconsider and withdraw the proposed rule. The proposed rule would infringe on employers’ rights to free speech, freedom of association and legal counsel, and would limit employees’ collective right to obtain balanced information to decide whether or not to be represented by a union. 

DOL originally planned to issue a final rule in August 2012, although it now appears to be halted until after the election. ABC will continue to closely monitor this rulemaking and will update members of any further action. For more information, download ABC’s issue brief on the persuader reporting rule. 

---

OSHA Makes Changes to Crane Rule Affecting Demolition and Underground Construction

On Aug. 17, the Occupational Safety and Health Administration (OSHA) issued a direct final rule that applies the requirements of the August 2010 cranes and derricks in construction standard to demolition work and underground construction. These areas were inadvertently omitted from the original rule. 

The direct final rule will apply the same crane rules to underground construction and demolition projects that are being used in other construction sectors. This rule is slated to go into effect on Nov. 15. For more information on the crane rule, visit OSHA’s website. 

---

EPA Delays Expansion of Lead Rule to Commercial Buildings

On Sept. 13, the EPA delayed its long-planned proposal to expand its Lead Safe Renovation, Repair and Painting Program (RRP) to include commercial buildings.

Under an RRP rule that went into effect in April 2010, contractors performing renovation, repair, and painting projects that disturb more than six feet of lead-based paint in most pre-1978 homes, child care facilities, and schools must be certified and follow specific work practices to prevent lead poisoning. After the rule was finalized, the EPA began taking steps to introduce two additional rules that would have expanded this program to include interior and exterior work on commercial buildings.

In response, ABC and a coalition of industry stakeholders expressed concern that the EPA was planning to take an inflexible approach to the rulemaking, which could impose unnecessary costs and threaten businesses and the jobs they create.

Under a settlement agreement issued in September 2012, the EPA will merge the two rules regarding interior and exterior RRP activities on commercial buildings and will not issue another proposal until July 2015, with a final rule anticipated in January 2017.

---

H-2B, MSD Rules Blocked in Latest Federal Funding Resolution

A continuing appropriations resolution (H.J. Res. 117) to fund federal agencies for the first six months of fiscal year 2013 includes restrictions on DOL rules addressing H-2B temporary worker wage calculations and musculoskeletal disorder (MSD) reporting requirements. 

Under the resolution, DOL is temporarily prohibited from implementing a final rule that replaces the current methodology for establishing wage rates for H-2B temporary workers with a system emphasizing Davis-Bacon Act wage determinations. Implementation cannot move forward until March 27, 2013, at the earliest. ABC continues to oppose the rule due to its substantial cost and the unscientific methodology used by DOL’s Wage and Hour Division to establish Davis-Bacon Act rates, which often inflates so-called “prevailing” wages. 

In addition, the resolution prohibits DOL from pursuing its proposal on MSDs during the first six months of fiscal year 2013. Under the proposed rule, OSHA Form 300 would have been revised to include an additional reporting column for MSDs. ABC opposes the change due to the vague and subjective definition of what would constitute an MSD, in addition to the hardships it would impose on businesses. OSHA temporarily withdrew the proposal in January 2011 to gather more feedback from small businesses.

---

ABC Submits Comments on OFCCP’s Hiring Quota Proposal

In December 2011, DOL’s Office of Federal Contract Compliance Programs (OFCCP) issued a controversial proposal to require federal contractors to drastically alter their current affirmative action and nondiscrimination programs. The proposal would set defacto hiring quotas for federal contractors to employ workers with disabilities.

The proposed rulemaking attempts to accomplish this by mandating arbitrary “goals” for hiring disabled workers by all contractors with a government contract or subcontract of $50,000 or more and 50 or more employees. In addition, the proposal requires construction contractors to conduct job group utilization analyses and file written reports for the first time. The construction industry was previously exempt from these requirements. The proposal ignores the unique nature of the construction industry; contains numerous, burdensome data collection and reporting requirements; and sets infeasible compliance requirements. 

On May 23, ABC and nine other groups sent a letter to Secretary of Labor Hilda Solis raising concerns about the proposed rulemaking. Several reports have been released that show the costs have been extremely underestimated. 

Further action on the rule is expected after the election. ABC will continue to closely monitor this rulemaking, and will update members of any further action.

---

Implementation of the Health Care Law

ABC has expressed serious concerns about the regulatory burdens imposed by the Patient Protection and Affordable Care Act (PPACA). As part of the Employers for Flexibility in Health Care (EFHC) Coalition, ABC has met with the Obama administration about the implementation of PPACA and has advocated for the development of workable regulations that maintain employer-sponsored coverage as a competitive option for all employees, whether full-time, part-time, temporary or seasonal workers. 

In a recent letter submitted to the Internal Revenue Service and DOL, EFHC expressed concern that employers are not able to fully prepare to implement PPACA’s employer requirements due to the absence of formal, comprehensive and final regulations on all issues under PPACA’s employer responsibility provisions. EFHC further stated that once comprehensive regulations are issued that employers can rely on for planning and budgeting purposes, employers will need at least 18 months to make the changes needed to fully comply with PPACA’s employer requirements. 

EFHC will continue to work with the administration and develop substantive policy recommendations on the major provisions included in PPACA that affect employers. To read more about EFHC’s submitted comments and rulemakings and guidance, visit www.abc.org/HealthCareGuidance. Additional information about PPACA may be found on the U.S. Department of Health and Human Service’s website. 

---

Free ABC Election Aftermath Webinar: Nov. 8

Join ABC General Counsel Maury Baskin on Thursday, Nov. 8, 2012, at 2 p.m. (EST), for a webinar: Election Aftermath – the Impact of the November Elections on the Federal Labor Agenda.

Maury Baskin will provide immediate post-election insight into how the outcome of the presidential and congressional elections will impact merit shop contractors. The consequences of the elections are expected to be huge, and one of the biggest impacts will be on labor relations. The agendas of the NLRB, DOL and other federal agencies are expected to shift dramatically depending on the election results. 

For more information and to register, visit ABC’s webinars webpage or email the ABC meetings department, [email protected].