ABC's quarterly Regulatory Alert provides an overview of the federally mandated rules, regulations and enforcement actions from the U.S. Department of Labor (DOL), National Labor Relations Board (NLRB) 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].

IN THIS ALERT:

Compliance Information:

• NLRB Reissues Rule to Shorten Union Election Time Frames
• OSHA Proposes New Electronic Recordkeeping Rule
• More than 600 ABC Members Tell OSHA to Withdraw Silica Rule
• OFCCP Final Rules on Affirmative Action Take Effect
• OSHA Proposes to Extend Crane Operator Certification Requirements
• EPA Issues Final Rule on Stormwater ELG
• EPA and Army Corps Propose to Expand Clean Water Act Jurisdiction
• President Obama Directs DOL to Update Federal Overtime Rules
• New Resources on the Use of Employment Background Checks
• Legal Case Roundup

Health Care Law

• IRS Issues Employer Mandate Final Rule; Further Delays for Some Employers
• Final Rules Issued on Employer Information Reporting Under Health Care Law
• ABC's Health Care Law Employer Toolkit

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NLRB Reissues Rule to Shorten Union Election Time Frames
 
On Feb. 6, the NLRB reissued a controversial proposed rulemaking, commonly referred to as the "ambush" election rule, that will reduce the amount of time between when a union files a representation petition and an election takes place from the current average of 38 days to as few as 10 days.
 
ABC and more than 1,200 members submitted comments requesting the agency to withdraw the proposal. Particularly concerning to construction employers is the rule's dramatic shortening of the amount of time between when a union files a representation petition and when an election takes place to as few as 10 days, which will impede employers' ability to pass along information to employees. The Board's proposal also creates privacy concerns by requiring employers to submit their employees' personal contact information, including email and phone numbers, to union organizers.
 
If finalized, the reissued "ambush" election proposal would work hand in glove with DOL's proposed persuader rule, which would deprive employees of their right to obtain balanced and informed input from both sides as they decide whether to be represented by a union. DOL plans to finalize the persuader rule in 2014.
 
To view a recent webinar, "Learn About the NLRB and DOL's 2014 Radical Agendas," presented by ABC General Counsel Maury Baskin, log in to ABC's Academy for Construction Ethics, Compliance and Best Practices. 

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OSHA Proposes New Electronic Recordkeeping Rule
 
On Nov. 8, OSHA issued a notice of proposed rulemaking that would require employers to electronically submit to the agency detailed injury and illness data that would be made publicly available through an online database. Under the proposal, OSHA would require establishments with 250 or more employees to submit injury and illness records (Forms 300, 300A and 301) to OSHA on a quarterly basis, and those with 20 or more employees in construction and other high-hazard industries to submit annually.
 
On Jan. 9 and Jan. 10, OSHA held informal public meetings in Washington, D.C., to receive public feedback on the proposed rule. In its testimony, the ABC-led Coalition for Workplace Safety requested that OSHA withdraw the proposed rulemaking. In addition, ABC and more than 900 members submitted comments to OSHA.
 
**Compliance Note: Until April 30, 2014, employers covered by OSHA's recordkeeping rule must keep OSHA Form 300A, "Summary of Work-Related Injuries and Illnesses," posted at each covered establishment. The form must be kept in a visible place where notices to employees are customarily posted.

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More than 600 ABC Members Tell OSHA to Withdraw Silica Rule
 
More than 600 ABC members joined ABC in submitting comments to OSHA requesting it withdraw its proposed rule that would drastically lower the permissible exposure limit (PEL) of respirable crystalline silica for the construction industry from a PEL of 250 µg/m3 to 50 µg/m3. The proposal also would require contractors to implement engineering controls and follow several "ancillary" provisions, such as exposure monitoring, medical surveillance and the establishment of regulated areas. 
 
ABC and the Construction Industry Safety Coalition (CISC) argued OSHA has not met its burden of demonstrating that the proposal is technologically and economically feasible. Many of the provisions in the rulemaking simply will not work in the "real world" of construction. ABC and CISC requested OSHA withdraw the burdensome proposal until it can demonstrate a rule of this kind is necessary and workable.
 
In addition, CISC testified in front of OSHA on March 24, reiterating many of the points from its comments. 

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OFCCP Final Rules on Affirmative Action Take Effect
 
The U.S. Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) published two final rules Sept. 24, 2013, drastically revising Section 4212 of the Vietnam Era Veterans' Readjustment Assistance Act (VEVRAA) and Section 503 of the Rehabilitation Act, which require federal contractors and subcontractors to maintain affirmative action and nondiscrimination plans for veterans and individuals with disabilities, respectively. The rules took effect March 24, 2014.
 
Though the new affirmative action rules have gone into effect, ABC has filed a legal challenge against the most burdensome portions of the new disabilities rule which remains pending at the D.C. Circuit Court of Appeals. A final decision on the validity of the new disabilities rule is expected by the end of 2014.
 
Of most concern to construction contractors are provisions included in both final rules requiring written documentation and tracking of workforce statistics to determine whether the percentage of protected employees meets affirmative action requirements for federal projects. Such paperwork and reporting provisions are completely new to the construction industry.
 
ABC prepared a guidance document summarizing the main provisions in each rule that can be viewed here. ABC also held a webinar on complying with the rules, "Learn How to Comply with the Newly Revised OFCCP Veterans and Individuals with Disabilities Rules," which can be found on ABC's Academy for Construction Ethics, Compliance and Best Practices.
 

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OSHA Proposes to Extend Crane Operator Certification Requirements
 
OSHA issued a notice of proposed rulemaking Feb. 10 requesting comments on extending the compliance date for the crane operator certification requirement by three years to Nov. 10, 2017, or extending it indefinitely, which was recommended by OSHA's Advisory Committee on Construction Safety and Health (ACCSH). The proposal comes in response to industry concerns regarding the qualification/certification requirements included in the August 2010 cranes and derricks in construction final rule. The extension would continue the current requirements for crane operators to be trained and competent, even if they are not officially certified.
 
ABC submitted comments supporting ACCSH's recommendation of postponing the certification indefinitely, until OSHA has clarified the "type" and "capacity" issue. ABC stated it is concerned that extending certification by three years still leaves questions about whether the agency will have the additional rulemaking completed in time. Limiting the amount of time the agency has to complete the rulemaking could lead to rushed and unclear regulations.
 
Click here to view OSHA's FAQs on crane operator certification requirements.  

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EPA Issues Final Rule on Stormwater ELG
 
The Environmental Protection Agency (EPA) March 6 issued a final rule on the Effluent Limitations Guidelines and Standards for the Construction and Development Point Source Category. Under the final rule, effective May 5, EPA dropped the numeric discharge limit for turbidity in stormwater and implemented best practices management to prevent erosion at construction sites.
 
The final rule was issued in response to a 2010 settlement agreement that withdrew the numeric discharge limit from the existing 2009 Construction and Development Effluent Limitations Guidelines Rule.
 
The rule also makes several other revisions to the 2009 rule, including the addition of a definition for "infeasible." More information on the final rule is available in a fact sheet.

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EPA and Army Corps Propose to Expand Clean Water Act Jurisdiction
 
On April 21, EPA and the U.S. Army Corps of Engineers released a proposed rule that aims to clarify the definition of "waters of the U.S." under the Clean Water Act. The proposal would significantly expand federal control of land and water resources across the nation—creating additional permitting and regulatory requirements.
 
EPA recently released a draft scientific report on the connectivity of water that is intended to guide the proposed rule. As part of the Waters Advocacy Coalition, ABC submitted comments on the report stating it provides no scientific support to make distinctions between significant connections and non-significant connections. The report, along with the comments received, is undergoing an independent peer review by the Scientific Advisory Board Panel. The rule will not be finalized until the final version of the scientific assessment is complete.
 
The public has 90 days to submit written comments on the proposed rule, comments are due July 21, 2014. 

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President Obama Directs DOL to Update Federal Overtime Rules
 
On March 13, President Obama signed a Presidential Memorandum directing the USDOL to "propose revisions to modernize and streamline existing overtime regulations," including changes to the so-called "white collar" worker classifications that have long been exempt from being paid time-and-one-half for working more than 40 hours per week. The most recent revision to these exemptions occurred in 2004, during the Bush Administration. Prior to those revisions, the criteria for the overtime exemptions had not changed significantly in 50 years.
 
Unlike the recent Presidential Executive Order increasing the minimum wage for government contractors' employees, this directive will impact both public and private work by all employers covered by the Fair Labor Standards Act, which includes the vast majority of construction contractors, subcontractors and suppliers.
 
Although specifics of the anticipated USDOL rule are not available, ABC's general counsel expects it will focus on the following areas: raising the minimum salary level; revising the duties requirement for the executive exemption, including eliminating the concept of concurrent duties; and refining the definition of a computer professional. Learn more here.
 
A proposal issued by USDOL will have to go through the federal rulemaking process, which could take anywhere between several months to well over a year. It is expected to face strong opposition from many business groups and is likely to be challenged in Congress and the courts.
 
To read about the current federal overtime exemptions for "white collar" employees, click here. 

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New Resources on the Use of Employment Background Checks
 
On March 10, the U.S. Equal Employment Opportunity Commission (EEOC) and the U.S. Federal Trade Commission (FTC) co-published two documents on the use of employment background checks.
 
The document on Background Checks: What Employers Need to Know includes information for employers on obtaining, using and disposing of background information.
 
The document on Background Checks:  What Job Applicants and Employees Should Know includes information for applicants and employees on background questions an employer may ask; background reports; if an employer finds negative background information; and where to go for help. 
 
More information is available here.

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Legal Case Roundup
 
To learn the latest on legal cases impacting the construction industry, please see the related Newsline stories:

• U.S. Supreme Court Hears 'Recess' Appointments Case
• NLRB Abandons Controversial 'Employee Rights' Poster Rule
• U.S. District Court Rules Against Davis-Bacon Expansion

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IRS Issues Employer Mandate Final Rule; Further Delays for Some Employers
 
The Department of Treasury (Treasury) and the Internal Revenue Service (IRS) issued a final rule  Feb. 10 implementing the employer mandate provisions included in the Affordable Care Act (ACA). The final rule makes some changes to the proposed rule issued in December 2012, including phasing in provisions for businesses with 50 to 99 full-time employees and those that offer coverage to most (but not yet all) of their full-time workers. Generally, ACA mandates that employers with 50 or more full-time equivalent employees offer a certain level of health coverage or be subject to new taxes.
 
A fact sheet issued by Treasury provides an overview of the phase-in included in the final rule. The fact sheet also includes information about full-time status determinations, affordability safe harbors and various employee categories, such as seasonal employees. 
 
Detailed questions and answers on the employer mandate provisions included in the final rule are available here.
 
Visit ABC's Health Care Law Employer Toolkit for more information on the employer mandate, including an analysis of the final rule by ABC's general counsel.   

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Final Rules Issued on Employer Information Reporting Under Health Care Law
 
On March 10, Treasury and the IRS issued final rules on information reporting by applicable large employers on health insurance coverage offered under employer-sponsored plans and information reporting of minimum essential coverage. The final regulations relate to ACA's employer and insurer information reporting requirements under Internal Revenue Code sections 6055 and 6056.
 
Section 6056 applies to large employers (generally with 50 or more full-time equivalent employees) subject to the employer mandate. Applicable large employers are required to report to the IRS information about their compliance with the employer mandate provisions and the health care coverage they have offered to full-time employees. Further, they are required to provide related statements to each full-time employee. The final rules discuss the content, method and timing of information required to be reported to the IRS and furnished to full-time employees. Further, it discusses alternative options for reporting. 
 
Under section 6055, health insurance issuers and self-insuring employers that provide minimum essential health coverage to individuals must report to the IRS information about the type and period of coverage and furnish related statements to covered individuals. The final rules discuss coverage subject to reporting, persons required to report, information required to report, time and manner of filing, combined reporting and statements furnished to individuals.
 
ABC's general counsel has provided a detailed summary of the final rules. Additional information on the health care law is available in ABC's Health Care Law Employer Toolkit. 

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ABC's Health Care Law Employer Toolkit
 
ABC has created a one-stop shop of resources to help employers navigate the complex health care law. The toolkit includes: reference guides, webinars and PowerPoints, government resources and much more. 
 
ABC's Health Care Law Employer Toolkit is updated regularly—visit it today!