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ABC's Regulatory Alert provides an overview of the federally mandated rules, regulations and enforcement actions from the U.S. Department of Labor (DOL), Occupational Safety and Health Administration (OSHA) 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 on ABC's Newsline and ABC's Academy for Construction Ethics, Compliance and Best Practices. ________________________________________ IN THIS ALERT: National Labor Relations Board Update -- NLRB Fully Staffed After Senate Confirms Five Members -- U.S. Supreme Court Will Hear NLRB "Recess" Appointment Case -- NLRB Petitions Appeals Courts for Rehearing on Poster Rule Compliance Information -- Spring Regulatory Agenda Released and the New U.S. Secretary of Labor Confirmed -- OSHA States Unions Can Represent Nonunion Employees During Inspections -- OSHA Broadens Exemption for Digger Derricks in Crane Rule -- OSHA Issues Final Rule on Cranes and Derricks in Demolition and Underground Construction -- OSHA Issues Direct Final Rule Updating Standards on Signage -- OSHA Updates Hazard Communication Standard -- New Hours of Service Rule and Guidance for Drivers in Effect -- DOL and DHS Issue Interim Final Rule on H-2B Wage Methodology -- OFCCP Final Rules Concerning Veterans and Individuals with Disabilities Expected Soon Health Care Law -- Delay of Employer Mandate Provisions and Information Reporting Requirements (PPACA) -- ABC Comments on Proposed Rule's Treatment of Wellness Programs -- Guidance on the Notice to Employees of Coverage Options under FLSA -- Updated Summary of Employer Requirements in PPACA ________________________________________ NLRB Fully Staffed After Senate Confirms Five Members The U.S. Senate voted July 30 in favor of five presidential nominees to the National Labor Relations Board (NLRB), which included new members Nancy Schiffer (D) and Kent Hirozawa (D), as well as NLRB Chairman Mark Pearce (D), who was reconfirmed. Two Republicans, Harry Johnson III (R) and Philip Miscimarra (R), were also confirmed by voice vote. With these confirmations, the Board is now fully staffed, meaning it can issue rules and decisions requiring a quorum unencumbered by the legal obstructions that have plagued it over the last two years. Moving forward, there will be a solid pro-union majority on the NLRB prepared to implement the Board's aggressive agenda that was under way before the recess appointment hiatus, albeit with dissenting opinions from the Republicans. ________________________________________ U.S. Supreme Court Will Hear NLRB "Recess" Appointment Case The U.S. Supreme Court announced June 24 that it will be reviewing a lower court ruling that held President Obama's 2012 "recess" appointments of three members to the NLRB were unconstitutional. The court likely will hear the case this fall. The original case was brought by Noel Canning, a Washington state bottling company, which argued the president abused his power and undermined the Senate's advice and consent role on nominations when he appointed the Board members. Specifically, Noel Canning challenged an NLRB decision that it must enter into a collective bargaining agreement with a labor union. The company and the ABC-led Coalition for a Democratic Workplace, who intervened in the case, argued the Board did not have a quorum to issue a decision because the recess appointments were invalid. On Jan. 25, the U.S. Court of Appeals for the D.C. Circuit ruled the president violated the Constitution when he bypassed the Senate to fill NLRB vacancies. On May 16, the U.S. Court of Appeals for the Third Circuit issued another ruling declaring the March 2010 recess appointment of Craig Becker to the NLRB unconstitutional, as well. On July 17, the U.S. Court of Appeals for the Fourth Circuit agreed with the two other courts by ruling that the president violated the Constitution when he bypassed the U.S. Senate to make recess appointments to the NLRB. In April, the NLRB filed a petition with the U.S. Supreme Court to appeal the D.C. Circuit's ruling. In response, all 45 U.S. Senate Republicans, the CDW and the U.S. Chamber of Commerce filed friend-of-the-court briefs asking the U.S. Supreme Court to uphold the decision. ________________________________________ NLRB Petitions Appeals Courts for Rehearing on Poster Rule The NLRB has petitioned for re-hearings in both courts that struck down its August 2011 "Notification of Employee Rights" rule. Under the rule, employers would have been required to display a poster in their workplace that contained a biased and incomplete list of employee rights under the National Labor Relations Act (NLRA). The NLRB first petitioned the U.S. Court of Appeals for the D.C. Circuit for a rehearing on July 22 and then the U.S. Court of Appeals for the Fourth Circuit on July 29. The Fourth Circuit Aug. 12 denied the NLRB's petition for rehearing. A decision has not been issued from the D.C. Circuit Court. A three-judge panel for the D.C. Circuit invalidated the notice posting rule May 7, primarily on the grounds that it violated free speech rights afforded to employers under the NLRA, supporting ABC's arguments. The Fourth Circuit Court ruled June 14 the NLRB exceeded its authority when it adopted the rule but said it did not need to address the free speech issue because the NLRB clearly lacked the authority to promulgate the rule in the first place. The notice posting rule has been under an injunction since April 2012 in response to a request by the ABC-led Coalition for a Democratic Workplace. COMPLIANCE NOTE: This ruling does not change the compliance requirements for federal contractors under Executive Order 13496 (or its subsequent 2010 implementing regulations) to post a similar notice from the U.S. Department of Labor. ________________________________________ Spring Regulatory Agenda Released and the New U.S. Secretary of Labor Confirmed The federal regulatory agenda was published July 3, 2013, and lists the actions federal agencies expect to take this year. To learn more about a specific agency's agenda, please see the related Newsline story: * Department of Labor * Occupational Safety and Health Administration -- OSHA to Focus on Crystalline Silica, Confined Spaces and I2P2 -- Recordkeeping and Crane Proposals New on OSHA Agenda * Environmental Protection Agency ABC sent a letter to the newly confirmed Secretary of Labor, Thomas Perez, congratulating him on his confirmation and asking him to consider ABC's concerns regarding DOL initiatives. With a newly confirmed Secretary of Labor, it is expected that there will be a release of DOL regulations that have been held up over the last year. Prominent among them are the "persuader" rule, which affects millions of employers and the Office of Federal Contract Compliance Programs veterans/individuals with disabilities rules, which impose new burdens on government contractors. ________________________________________ OSHA States Unions Can Represent Nonunion Employees During Inspections OSHA April 5 released an interpretation letter (dated Feb. 21) stating that nonunion employees can authorize an individual "affiliated with a union or a community organization" to act as their representative during agency-sanctioned inspections and other enforcement situations. The letter, written by OSHA Deputy Assistant Secretary Richard Fairfax in response to a union clarification request, states that employees at worksites without collective bargaining agreements can designate an individual affiliated with a union or community organization to be their "personal representative" in enforcement-related matters during a workplace inspection on OSHA inspection walkarounds. OSHA's letter also states that "most employee representatives will be employees of the employer being inspected," but adds "there are times when the presence of an employee representative who is not employed by that employer [allows for] a more effective inspection." ABC considers this letter of interpretation to be highly questionable, as it goes against decades of precedent, and is considering avenues to challenge this interpretation. Members that are confronted by an unwanted union affiliated person requesting to join an inspection may have an avenue to challenge its validity and are encouraged to contact ABC at [email protected]. ABC will continue to aggressively advocate for our members' interests while monitoring this situation and will provide updates through Newsline as they become available. For additional information on OSHA's Interpretation Letter and how it can be challenged, click here. ________________________________________ OSHA Broadens Exemption for Digger Derricks in Crane Rule OSHA May 29 issued a final rule that broadens the current exemption for digger derricks used in the electric-utility industry to also include telecommunications work. Digger derricks are used by utility contractors to drill and place utility poles and transformers. The final rule, effective June 28, provides a complete exemption from having to follow the requirements of Subpart CC of the Cranes and Derricks in Construction standard. The digger derricks exemption is part of the Cranes and Derricks in Construction standard that was issued Aug. 9, 2010. ________________________________________ OSHA Issues Final Rule on Cranes and Derricks in Demolition and Underground Construction On April 23, OSHA issued a final rule that applies the requirements of the August 2010 Cranes and Derricks in Construction standard to demolition and underground work. These areas were inadvertently omitted from the original rule. The final rule, effective May 23, applies the same crane rules being used in other construction sectors to underground construction and demolition projects. This includes the requirement for operator certification to be completed by Nov. 10, 2014. For more information on the crane rule, visit OSHA's website. ________________________________________ OSHA Issues Direct Final Rule Updating Standards on Signage OSHA June 13 issued a direct final rule to update the construction signage standards by adding references to the latest versions of American National Standards Institute (ANSI) consensus standards on specifications for accident prevention signs and tags. The rule retains the existing references to the earlier ANSI standards, which allows employers the option to either comply with the updated or earlier standards. The rule also incorporates, by reference, Part VI of the Manual of Uniform Traffic Control Devices (MUTCD), 1988 Edition, Revision 3, into the construction standards. The rule becomes effective Sept. 11, 2013. ________________________________________ OSHA Updates Hazard Communication Standard In March 2012, OSHA revised its Hazard Communication Standard to align it with the United Nations' global chemical labeling system. The standard will be fully implemented in 2016 and will classify chemicals according to their health and physical hazards, as well as establish consistent labels and safety data sheets for all chemicals made in the United States and imported from abroad. During the transition period, employers may comply with the new standard, the current standard or both. The first compliance deadline for the revised Hazard Communication Standard is Dec. 1, 2013. At that time, all employers must have trained their workers on the new label elements and the safety data sheets format. ABC recently held a webinar on what employers need to know regarding the new globally harmonized system of classification and labeling chemicals. To view the archived webinar, please visit the Academy for Construction Ethics, Compliance and Best Practices. For more information, visit OSHA's Hazard Communication Safety and Health website. ________________________________________ New Hours of Service Rule and Guidance for Drivers in Effect The Federal Motor Carrier Safety Administration's (FMCSA) Hours of Service (HOS) rule, which lowered the total hours a week a truck driver can work from 82 to 70 and implemented a "34-hour restart" requirement, went into effect July 1. On Aug. 2, in response to legal challenges against the final rule, the U.S. District Court of Appeals for the District of Columbia Circuit issued a decision upholding the HOS rule with one exception, the court struck down the application of the 30-minute break requirement for short-haul drivers with non-commercial drivers licenses (non-CDLs). FMCSA then applied the court's decision to short-haul CDL drivers as well, and announced it would immediately cease enforcement of the 30-minute rest break provision of the HOS rule against short-haul operations. Specifically, the following drivers will be exempt from enforcement of the break rule:
View FMCSA's Enforcement Policy for more details on the agency's short-haul exemptions from the 30-minute rest break provision.