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ABC has prepared a summary of Biden administration regulatory actions of interest to ABC members by agency.
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’s Occupational Safety and Health Administration issued its Improve Tracking of Workplace Injuries and Illnesses final rule, which will undo the ABC-supported provisions of the 2019 final rule promulgated under the Trump administration and reprise the 2016 Obama-era rule. The final rule becomes effective on Jan. 1, 2024, for certain employers and OSHA intends to make much of the data it collects publicly available online.
In a press release, ABC announced its opposition to the final rule. “Unfortunately, the Biden administration is moving forward with a final rule that does nothing to achieve OSHA’s stated goal of reducing injuries and illnesses,” said Ben Brubeck, ABC vice president of regulatory, labor and state affairs. “Instead, 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.”
What does the final rule do?
In June 2022, ABC submitted comments urging OSHA to withdraw the proposed rule.
Heat Injury and Illness Prevention in Indoor and Outdoor Settings
On Oct. 27, 2021, OSHA issued an Advance Notice of Proposed Rulemaking on Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings, which requested information on how to implement regulations to prevent workers from hazardous heat. ABC, as a steering committee member of the Construction Industry Safety Coalition, submitted comments 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.
On July 27, 2023, OSHA issued a heat hazard alert 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’s National Emphasis Program on heat, announced in April 2022, to focus enforcement efforts in geographic areas and industries with the most vulnerable workers.
In September, OSHA held six Small Business Advocacy Review panel (also known as a SBREFA panel) meetings to gather input on a possible Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings rule. Any interested party may submit comments and the agency will include those comments in the public docket. The deadline to comment is Dec. 23 and all such comments can be submitted via regulations.gov at OSHA-2021-0009-1059.
On Sept. 29, OSHA issued new resources to protect workers from the effects of heat.
ABC 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 ABC will continue to support members in ensuring preparedness for heat-related issues through a wide range of resources.
Worker Walkaround Representative Designation Process
On Oct. 16, the U.S. Department of Labor’s Occupational Safety and Health Administration issued an extension of the comment period for its Worker Walkaround Representative Designation Process proposed rule, 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. OSHA extended the comment period from Oct. 30 to Nov. 13. On Sept. 21, ABC, as a steering committee member of the Coalition for Workplace Safety, wrote to OSHA requesting a 60-day extension. ABC will submit comments in opposition to the rule and ABC members are also encouraged to submit comments on regulations.gov.
On Sept. 26, ABC joined 40 other CWS members in sending a letter to the U.S. House Education and the Workforce Committee’s Subcommittee on Workforce Protections calling out OSHA for its proposed rule and the politicization of the agency that the rulemaking exemplifies. Read CWS’s press release and letter.
To learn more about the rule and what employers can do to prepare, see ABC general counsel Littler Mendelson’s analysis of the proposal. In addition, watch ABC’s members-only webinar, OSHA Developments Affecting the Construction Industry, which is archived in the ABC Academy.
Background:
On Aug. 30, ABC issued a statement opposing the proposed rule, saying, “ABC is 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,” said Ben Brubeck, ABC vice president of regulatory, labor and state affairs. “This proposal does nothing to promote workplace safety and it will have a substantial negative impact on the rights of employers and their employees.”
“By allowing outside union representatives access to nonunion employers’ private property, OSHA is injecting itself into labor-management disputes and casting doubt on its status as a neutral enforcer of the law,” said Brubeck. “Unfortunately, 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.
“OSHA can have a bigger impact on jobsite safety by fostering positive partnerships with employers and promoting safety practices that produce results," said Brubeck. “For example, in ABC’s 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.”
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 ABC adamantly opposed, expressing serious concerns. OSHA eventually rescinded the letter of interpretation on April 25, 2017.
ABC 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, ABC as a member of CISC, submitted comments in response to OSHA’s request for additional comment on its “potential provisions or approaches” to a final Occupational Exposure to COVID-19 in Healthcare Settings rule. CISC opposes OSHA’s proposal to expand coverage under any promulgated final rule and include certain construction work in health care settings.
ABC also submitted comments on April 22 as a steering committee member of the Coalition for Workplace Safety. The CWS believes unequivocally that OSHA is not permitted to, and must not, issue a permanent standard after having withdrawn the health care emergency temporary standard in December 2021.
While a final rule was slated for June 2023, it has not yet been issued.
Personal Protective Equipment in Construction
On July 20, 2023, OSHA issued a proposed rule clarifying the requirements for the fit of personal protective equipment in construction. Read the DOL’s press release.
On Sept. 18, ABC, as a steering committee member of the Construction Industry Safety Coalition, submitted comments to OSHA in response to the PPE proposed rule and urged the agency to clarify what it means by the terms “properly fit” and “additional hazards” 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 “improper fit.”
Powered Industrial Truck Design Standard Update
On May 17, 2022, ABC, as a steering committee member of CISC, submitted comments to OSHA voicing compliance and cost concerns on the proposed rule on powered industrial trucks design standard update.
According to the regulatory agenda, OSHA planned to analyze the comments from the NPRM through July 2023.
Welding in Construction Confined Spaces
In 2023, OSHA intends to issue a proposed rule 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.
While an interim final rule was slated for August 2023, it has not yet been issued.
Infectious Diseases
In March 2024, OSHA intends to issue a proposed rule 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, Updating the Davis-Bacon and Related Acts Regulations, in the Federal Register. The regulation’s drastic revisions to existing rules regarding government-determined 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.
ABC issued a statement opposing the new rule, stating: “This is yet another Biden administration handout to organized labor on the backs of taxpayers, small businesses and the free market,” said ABC Vice President of Regulatory, Labor and State Affairs Ben Brubeck. “Unfortunately, the DOL’s final rule disregards the feedback of ABC contractors, construction industry stakeholders and thousands of small businesses urging the withdrawal of this unnecessary, costly and burdensome regulation.”
All contracts entered into after Oct. 23 are subject to the new rule’s 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’s term is exercised and for ongoing contracts not tied to completion of a particular project.
ABC continues to consider options for a potential legal challenge to the final rule. For more information on the final rule, see ABC’s previous Newsline article, ABC General Counsel Littler Mendelson’s analysis and ABC’s online resources at abc.org/davisbacon.
ABC also held a members-only webinar on the final rule on Aug. 21, and the recording is now available on the ABC Academy.
On Oct. 19, ABC 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’s inscrutable and burdensome wage determination practices under the Davis-Bacon and Related Acts.
Further, the DOL has provided compliance resources on the final rule.
Independent Contractor
In January 2021, the Trump-era DOL issued an independent contractor final rule under the Fair Labor Standards Act, which ABC strongly supported. 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 ABC and other industry associations. On March 26, 2021, ABC, the ABC Southeast Texas chapter and the Coalition for Workforce Innovation filed suit 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 Trump administration’s 2021 independent contractor final rule in that case. Under a decision applauded by ABC, the ABC-supported rule 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 announced 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, ABC submitted comments opposing the DOL’s new proposed rule. In the comments, ABC argued 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.
On Sept. 28, OSHA sent its final rule to OMB’s OIRA for review. The text has not yet been made public.
Overtime
On Sept. 8, 2023, the DOL published a new proposed rule that would alter the “white collar” overtime exemption regulations applicable to executive, administrative and professional employees. Specifically, the proposal would significantly raise the minimum salary level needed to qualify as exempt.
The Partnership to Protect Workplace Opportunity, of which ABC is a steering committee member, created a grassroots toolkit for members to respond to the U.S. Department of Labor’s new overtime proposed rule. The grassroots portal allows you to send model comments directly to the DOL as well as a model letter to your senators and representative in Congress opposing the new proposed rule. The deadline to submit comments is no later than Nov. 7.
Under the proposed rule, it is expected that the minimum salary threshold will be at least $55,068 (annualized). However, when the DOL promulgates the final rule, the agency claims it will use the most recent data then available. Thus, the DOL projects the minimum salary threshold to be $60,209 (annualized) in 2024—an increase of nearly 70% from the current $35,568 salary level.
The DOL also proposes to significantly raise the total annual compensation needed to qualify for exemption under the streamlined test for highly compensated employees from the current total annual compensation of $107,432 to $143,988.
Finally, the DOL proposes to automatically update the standard salary level and the HCE total annual compensation threshold every three years.
On Sept. 25, PPWO submitted an extension request to the DOL urging the agency to extend the Nov. 7 comment deadline by 60 days. Unfortunately, the DOL denied PPWO’s request. ABC will submit comments opposing the new rule by the deadline of Nov. 7 and ABC members are also encouraged to submit comments on regulations.gov.
To learn more about the rule’s proposed changes, see ABC general counsel Littler Mendelson’s analysis of the proposal. Also, see the DOL’s frequently asked questions about the proposed rule.
“ABC is 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,” said Ben Brubeck, ABC vice president of regulatory, labor and state affairs, in a statement immediately following the DOL announcement.
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 blocking the rule from taking effect.
Nondisplacement of Qualified Workers Under Service Contracts
On Aug. 15, 2022, ABC submitted comments to the DOL identifying a number of concerns with its proposed rule on Nondisplacement of Qualified Workers Under Service Contracts, which would implement Executive Order 14055.
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.
ABC believes 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, ABC is 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.
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’s Office of Labor-Management Standards published its final revision to the Form LM-10 Employer Report, 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’ unique entity identifier and federal contracting agency or agencies, if applicable. The revision will be effective for reports filed on or after Aug. 28, 2023.
In October 2022, ABC submitted a comment letter 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 “blacklist” 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 “persuader activities.”
Here are DOL resources on the final revision to the Form LM-10 Employer Report:
Continue to monitor Newsline for any new developments on this topic.
Office of Apprenticeship
National Apprenticeship System Enhancements
On July 31, 2023, the DOL’s Office of Apprenticeship sent a proposed rule on National Apprenticeship System Enhancements to OMB’s OIRA for review. The text has not yet been made public. However, according to the regulatory agenda, the proposed rule would overhaul 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, an ABC-led coalition of construction and business associations submitted a letter to the Advisory Committee on Apprenticeships opposing the committee’s recommendations 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
On Aug. 29, the U.S. Treasury Department’s Internal Revenue Service released a proposed rule and FAQs on provisions of the ABC-opposed Inflation Reduction Act, 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’s Newsline article.
The Treasury’s 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––including solar, wind, hydrogen, carbon sequestration, electric vehicle charging stations and more––conditioned on compliance with controversial prevailing wage and government-registered apprenticeship requirements.
In October, ABC 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, ABC utilized this survey data in comments to the U.S. Treasury Department’s Internal Revenue Service in response to the proposed rule. ABC issued a press release on the comments, stating:
“If the Biden administration is truly committed to the Inflation Reduction Act’s stated goal of promoting construction of critical clean energy infrastructure, Treasury and the IRS must significantly revise the proposed rule to clarify prevailing wage and apprenticeship requirements and eliminate unnecessarily burdensome provisions that depart from the letter of the law,” said Ben Brubeck, ABC vice president of regulatory, labor and state affairs. “Otherwise, increased costs and widespread delays on clean energy construction projects are inevitable as developers and contractors struggle to understand and comply with cumbersome and unclear regulations.
“While inflationary prevailing wage regulations and government-registered apprenticeship mandates that limit small business and workforce participation are unfortunately required by the Inflation Reduction Act, the agencies can still take important steps to provide clarity and lessen burdens for taxpayers and contractors,” said Brubeck. “Among many other recommended changes to the proposed rule outlined in ABC’s comments, IRS must ensure clear prevailing wage classifications are readily available to contractors seeking to pay appropriate wages and establish apprenticeship requirements and exceptions that align with actual industry practice.”
ABC 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.
In addition, ABC encourages ABC members and other contractors to connect with more than 400 government-registered apprenticeship programs offered by ABC chapters that can help contractors meet IRA apprenticeship requirements and win contracts for clean energy projects seeking the full IRA tax credits.
ABC hosted an ABC members-only webinar on Sept. 14, which is archived in the ABC Academy.
Stakeholders can review ABC and government resources on the IRA tax credits for clean energy projects at abc.org/ira.
Federal Acquisition Regulation Council
Use of Project Labor Agreement for Federal Construction Projects
On Feb. 4, 2022, President Biden signed Executive Order 14063, Use of Project Labor Agreements for Federal Construction Projects. 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. Governors, members of the U.S. House of Representatives and U.S. senators sent letters to the White House opposing its pro-PLA policies.
Additionally, ABC sent the White House a letter 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 proposed rule requiring federal construction contracts of $35 million or more to be subjected to project labor agreements, in accordance with EO 14063.
ABC condemned the proposal and included the results of its Sept. 7, 2022, survey of ABC contractor 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, members of Congress, governors and construction industry anti-PLA coalition members submitted comments to the FAR Council opposing the rule.
On Sept. 7, 2023, the FAR sent its final rule 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 proposed rule 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, ABC submitted comments opposing the proposal’s overly burdensome, costly and punitive approach to regulating GHG emissions of federal contractors. While ABC 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 December 2023.
Cyberthreat and Incident Reporting and Information Sharing
On Oct. 3, 2023, the Federal Acquisition Regulatory Council issued a proposed rule on cyberthreat and incident reporting and information sharing aimed at implementing Executive Order 14028, Improving the Nation’s Cybersecurity.
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. Comments on the proposed rule are due Dec. 4.
The FAR’s 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’ compliance and implementation of cybersecurity requirements. The CMMC proposed rule arrived at the Office of Information and Regulatory Affairs on July 28 and may be released imminently.
ABC will continue to provide resources for complying with federal cybersecurity requirements, including a July 25 webinar on the CMMC available in the ABC Academy and a Cybersecurity Resources Guide.
National Labor Relations Board
Joint Employer
On Oct. 26, 2023, the National Labor Relations Board issued its final rule on Joint Employer Status Under the National Labor Relations Act. Effective Dec. 26, the final rule takes an ax to the ABC-supported 2020 NLRB joint employer final rule, which provided clear criteria for companies to apply when determining status. ABC will explore all options to push back on this harmful final rule, including possible litigation.
Immediately following the issuance of the final rule, ABC released the following statement:
“It is unfortunate that the Biden NLRB decided to greatly expand joint-employer liability under the NLRA, which will cause confusion and impose unnecessary barriers to and burdens on contractor and subcontractor relationships throughout the construction industry,” said Ben Brubeck, ABC vice president of regulatory, labor and state affairs. “As a result, contractors may be vulnerable to increased liability, making them less likely to hire subcontractors, most of which are small businesses. Ultimately, this overbroad standard will have an adverse impact not only on our member contractors, but also on the overall economy.”
On Dec. 7, 2022, ABC submitted comments to the NLRB urging the Board to withdraw the new proposed rule.
Resources:
‘Ambush’ Election Rule
Despite being litigated for years, the Biden administration’s NLRB has revived controversial policy from the Obama era in the form of its Representation-Case Procedures final rule. The direct final rule, issued without notice and the opportunity to comment, essentially restores provisions of the “ambush” election rule of 2014 and rescinds the remaining ABC-supported provisions of the 2019 final rule. The rule will apply to representation petitions filed on or after Dec. 26, 2023, and employers will have less time to respond to representation petitions.
“The Board’s efforts to again reduce the amount of time between when a union files a representation petition and an election takes place 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,” said Ben Brubeck, ABC vice president of regulatory, labor and staff affairs. “Ultimately, the rule infringes on the rights of employers and employees to a fair pre-election process and 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 2023 final rule, see ABC’s Newsline article on Sept. 5. See also the NLRB comparison chart of prior and new Representation Case Procedures as well as the fact sheet for more information.
Additionally, ABC’s general counsel Littler Mendelson has prepared an analysis of the final rule.
Finally, ABC will be offering an ABC members-only webinar on NLRB recent decisions and rules on Oct. 26 at 2 p.m. ET. Register now!
ABC vehemently opposed the 2014 rule and filed a legal challenge against it.
Federal Trade Commission
Ban on Noncompete Agreements
On April 19, 2023, ABC submitted comments urging the Federal Trade Commission to withdraw its unprecedented proposal to ban all noncompete agreements nationwide. ABC argued 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.
ABC 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.
According to the regulatory agenda, staff planned to review comments through June 2023.
Additional Rules To Monitor Include:
Environmental Protection Agency
On Aug. 29, the U.S. Environmental Protection Agency and Army Corps of Engineers issued a final rule and fact sheet regarding amendments to the definition of “waters of the United States” 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’s May 25 decision in Sackett v. Environmental Protection Agency.
ABC issued a statement in response to the rule, with Vice President of Regulatory, Labor and State Affairs Ben Brubeck stating:
“Unfortunately, these revisions fail to fully implement the U.S. Supreme Court’s ruling in Sackett v. Environmental Protection Agency, which placed clear boundaries on the scope of the federal government’s authority while maintaining reasonable environmental protections for America’s waterways.”
The rule implements some of the key wins from the Sackett decision, including by eliminating the “significant nexus” test. However, it fails to fully implement the court’s opinion, including on the definition of “relatively permanent” 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 January 2023 final rule 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—A proposed rule to further revise NEPA regulations of federal environmental reviews was issued on July 31. ABC joined a coalition of trade associations in submitting comments opposing the proposed rule, which will unnecessarily delay permitting for critical infrastructure projects. Read more.
ABC will continue to provide updates on these and other rulemakings in Newsline.