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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?
Learn more about the final rule.
In June 2022, ABC submitted comments urging OSHA to withdraw the proposed rule.
Heat Injury and Illness Prevention in Indoor and Outdoor Settings
On July 27, 2023, OSHA issued 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.
OSHA’s actions come after President Joe Biden announced a series of actions aimed at protecting workers from the impact of extreme heat, including asking the DOL to issue a first-ever hazard alert for 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.
OSHA Actions Related to Heat Illness and Prevention:
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 June 22, 2023, OSHA announced it will be holding Small Business Advocacy Review panel (also known as a SBREFA panel) meetings this summer to gather input on a possible Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings rule. Learn more about the SBREFA panel.
Worker Walkaround Representative Designation Process
On July 17, 2023, the DOL sent its proposed rule on Worker Walkaround Representative Designation Process to the OIRA at the OMB for review. While the text of the proposed rule is not yet available to the public, the regulatory agenda indicates the proposed rule would “clarify the right of workers and certified bargaining units to specify a worker or union representative to accompany an OSHA inspector during the inspection process/facility walkaround, regardless of whether the representative is an employee of the employer, if in the judgment of the Compliance Safety and Health Officer such person is reasonably necessary to an effective and thorough physical inspection.”
On Feb. 21, 2013, OSHA issued a letter of interpretation endorsing union representatives and other nonemployee third parties accompanying OSHA inspectors on walkaround inspections at nonunion workplaces, which ABC adamantly opposed, expressing serious concerns. OSHA eventually rescinded the letter of interpretation on April 25, 2017.
Additional Background on the 2013 Letter of Interpretation:
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. ABC plans to submit comments by the deadline of Sept. 18. Read the DOL’s press release.
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 August 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.
An interim final rule is slated for August 2023.
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. 9, 2023, the U.S. Department of Labor issued its long-awaited final rule that will make drastic revisions to the Davis-Bacon Act and Related Acts regulations that apply to federal and federally assisted construction projects funded by taxpayers. Learn more about the final rule and register for ABC’s webinar on Aug. 21.
ABC immediately issued a press release 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. Instead, the DOL is moving forward with dramatic changes to prevailing wage regulations, reversing much-needed reforms that were established nearly 40 years ago, and unlawfully increasing the regulatory burden on small businesses, new industries and public works projects.”
In May 2022, ABC submitted nearly 70 pages of comments on the DOL’s ABC-opposed March 2022 proposed rule, and its more than 50 significant changes, urging the DOL to withdraw the proposal. ABC’s comments detailed how the proposed rule violated existing law and would fail to fix the DOL’s unscientific wage determination process, rescind pro-taxpayer reforms made by the Reagan administration and increase regulatory burdens on small businesses, new industries and more public works projects.
Key changes in the final rule include:
The final rule is scheduled to take effect 60 days after publication in the Federal Register. Contracts entered into after this date will be impacted by the new provisions of the rule.
ABC staff and counsel are currently reviewing the 800-plus pages of the final rule and will provide an analysis upon completion of review as well as additional information on any potential legal challenges to the new rule.
ABC has provided additional resources to assist contractors in complying with the final rule, located on ABC’s Davis-Bacon Act webpage.
Please continue to monitor ABC’s Newsline for further updates.
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.
A final rule is currently targeted for release in August 2023.
Overtime
The DOL is expected to issue a proposed rule in August 2023 on the “exemption of bona fide executive, administrative, and professional employees from the Fair Labor Standards Act’s minimum wage and overtime requirements” (also known as the “white-collar” exemptions). The proposed rule is currently at the OMB’s OIRA for review.
In 2016, the DOL issued a final overtime rule that would have doubled the minimum salary level for exemption from $23,660 to $47,476 per year. ABC, along with several other business groups, sued the DOL in federal court and succeeded in blocking the rule from taking effect.
In 2019, the Trump-era’s DOL issued a new overtime proposal to formally rescind the 2016 rule and readjusted the salary threshold to $35,568 per year. The final rule went into effect on Jan. 1, 2020.
ABC continues to urge the Biden DOL to abandon or postpone any future overtime rulemaking, since it was just modified in 2019. Further, any new overtime rule would fail to recognize the lingering economic consequences of inflation, global supply chain disruptions, rising materials prices and workforce shortages.
Nondisplacement of Qualified Workers Under Service Contracts
On Aug. 15, 2022, 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.
While the final rule was targeted for June 2023, it has not yet been issued.
Office of Labor-Management Standards
Form LM-10 Employer Report
On July 28, 2023, 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
The ABC-opposed Inflation Reduction Act was signed into law on Aug. 16, 2022, and provides over $270 billion in tax credits for the construction of solar, wind, hydrogen, carbon sequestration, electric vehicle charging stations and other clean energy projects.
A new policy in Subtitle D-Energy Security of the IRA grants developers/taxpayers a bonus tax credit 500% greater than a baseline tax credit of 6%. However, this is conditioned on requirements that project contractors meet prevailing wage and apprenticeship requirements outlined in the legislation and IRS guidance. This new policy is an unprecedented expansion of prevailing wage and government-registered apprenticeship requirements/enticements onto private construction projects via the federal tax code.
While Treasury was expected to issue a proposed rule to provide additional guidance on these requirements by July 2023, it has not yet been issued. As additional information becomes available, it will be added to ABC’s IRA Resources and Guidance for Contractors and Developers.
Federal Acquisition Regulation Council
Use of Project Labor Agreement for Federal Construction Projects
On Feb. 4, 2022, President Biden signed 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.
A final rule is targeted for release in September 2023.
Disclosure of Greenhouse Gas Emissions and Climate-Related Financial Risk
On Nov. 14, 2022, the Federal Acquisition Regulatory 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.
National Labor Relations Board
Joint Employer
On Sept. 6, 2022, the NLRB announced a new joint employer proposed rule, which would rescind and replace the ABC-supported 2020 final rule on Joint Employer Status Under the National Labor Relations Act. As NLRB members Marvin E. Kaplan and John F. Ring explained in their dissent, the proposed rule “would not merely return the Board to the Browning-Ferris Industries standard but would implement a standard considerably more extreme than BFI.” ABC was a vocal opponent of the expanded definition of joint employer that was created by the NLRB’s 2015 BFI decision, and has supported legal and legislative efforts to restore the standard that was in place for more than 30 years.
On Dec. 7, ABC submitted comments to the NLRB urging the Board to withdraw the new proposed rule and retain the current 2020 NLRB final rule, which provides clear criteria for companies to apply when determining status.
In the comments, ABC argued that the new proposal will greatly expand joint-employer liability by trying to make indirect or even just reserved, unexercised control sufficient to trigger joint-employer status. This overbroad joint-employer standard will have an adverse impact not only on our member contractors but also on the overall economy.
Further, the proposal will cause confusion and impose unnecessary barriers and burdens on contractor and subcontractor relationships throughout the construction industry. As a result, contractors may be vulnerable to increased liability, making them less likely to hire subcontractors, most of which are small businesses.
A final rule is expected in August 2023.
Election Protection Rule
On Feb. 2, 2023, ABC submitted comments to the NLRB opposing its proposed rule on Representation-Case Procedures, which addresses election-blocking charges, voluntary recognition and construction industry bargaining relationships. The proposal would rescind the ABC-supported 2020 NLRB final rule, which is intended to “better protect employees’ statutory right of free choice on questions concerning representation.”
A final rule is targeted for August 2023.
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
Revised Definition of “Waters of the United States” Phase 2—The EPA has withdrawn this proposed rule. However, the agency has announced its intent to issue a new final rule by Sept. 1 in light of the Sackett Supreme Court decision.
Council on Environmental Quality
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. Read more.
ABC will continue to provide updates on these and other rulemakings in Newsline.