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ABC Regulatory Roundup and 2023 Spring Regulatory Agenda Update

June 28, 2023

On June 13, the Biden administration released its Spring 2023 Unified Agenda of Regulatory and Deregulatory Actions. The agenda lists upcoming rulemakings and other regulatory actions from each agency that the administration expects to publish in 2023. ABC has prepared a summary of the 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 June 30, 2022, ABC submitted comments urging OSHA to withdraw the proposed amendments to the Improve Tracking of Workplace Injuries and Illnesses rule, which would require establishments with 100 or more employees in certain designated industries to electronically submit information from their OSHA Forms 300, 301 and 300A to OSHA annually. Establishments with 20 to 99 employees in certain designated industries would continue to be required to electronically submit information from their OSHA Form 300A to OSHA once a year. OSHA intends to make much of the data it collects publicly available online.

ABC urged the agency to withdraw the proposed rule because it does nothing to achieve OSHA’s stated goal of reducing injuries and illnesses and fatalities. Instead, the proposal will force well-meaning, responsible 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. 

This rule was first issued under the Obama administration. In 2019, the Trump-era DOL issued a new final rule, which eliminated the Obama-era requirement for establishments with 250 or more employees to electronically submit information from OSHA Forms 300 and 301 to OSHA annually. Currently, covered establishments are only required to electronically submit information from OSHA Form 300A to OSHA.

On April 7, 2023, the DOL sent its final rule to the OIRA at the OMB for review.  According to the regulatory agenda, the final rule is expected to be issued imminently. 

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.

ABC strongly supports worker safety and protection from heat injury and illness. However, flexibility for employers must be maintained in any rulemaking on this issue. A regulatory approach—if adopted—must be simple and should integrate the key concepts of “water, rest, shade.” ABC also supports a separate regulatory approach for the construction industry to ensure the regulation is adaptable to the fluid nature of the construction environment.

According to the regulatory agenda, the agency plans to initiate a Small Business Regulatory Enforcement Fairness Act panel in August 2023.   

Worker Walkaround Representative Designation Process

A proposed rule is targeted for June 2023 to “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 and expressed serious concerns. OSHA eventually rescinded the letter of interpretation on April 25, 2017.  

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. 

A final rule is slated for June 2023.

Personal Protective Equipment in Construction

The agency is expected to issue a proposed rule clarifying the requirements for the fit of personal protective equipment in construction in June 2023.

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 intends 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 March 18, 2022, the DOL’s Wage and Hour Division issued a proposed rule that would “modernize” the Davis-Bacon Act and related regulations. Despite its stated purpose, the rulemaking would instead reverse course by undoing Reagan administration reforms, making union rates more likely to be adopted as prevailing wages and expanding prevailing wage requirements to cover certain prefabrication work, transportation and flaggers, among other concerns.

ABC also surveyed contractor members to gather insight on the potentially harmful impacts of this proposal and utilized the data gathered in its comment letter, which was filed on May 17. In nearly 70 pages of comments on the proposed rule, ABC opposed and provided feedback on many of the more than 50 significant changes in the proposed rule.

On Dec. 16, the DOL sent its final rule updating Davis-Bacon and Related Acts prevailing wage regulations to the Office of Information and Regulatory Affairs at the Office of Management and Budget for review. The final rule is expected to be issued imminently.

ABC supports the full repeal of the Davis-Bacon Act (H.R. 2218/S. 805) as well as any state and local prevailing wage laws that mandate wage and benefit rates. In the absence of full repeal of the Davis-Bacon Act and state prevailing wage laws, ABC continues to support legislative and regulatory reform efforts designed to mitigate its negative effects on industry and taxpayer stakeholders and failure to reflect the current market rate. ABC opposes expansion of Davis-Bacon and state and local prevailing wage laws into areas of public and private projects in which it has not been previously mandated.

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).

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.

Office of Labor-Management Standards

Form LM-10 Employer Report

On Oct. 13, 2022, ABC submitted a comment letter to the DOL’s Office of Labor-Management Standards regarding its proposed revisions to the LM-10 Employer Report form. ABC opposed the new proposed revision, which would add a checkbox to the form for employers to disclose whether they are a federal contractor, as well as identifying information and the federal agency or agencies contracted for.

Employers must file this form 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.”

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.

In April, the DOL sent its final rule on the Form LM-10 Employer Report to the OIRA at the OMB for review. The final rule is expected to be issued in August 2023.   

Office of Apprenticeship

National Apprenticeship System Enhancements

By August 2023, the DOL’s Office of Apprenticeship intends to issue a proposed rule overhauling 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, 2023, 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.

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.

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 is reviewing 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—Proposed rule, June 2023

More information on these and other rulemakings can be found in the Spring 2023 Regulatory Agenda. ABC will continue to provide updates on these and other rulemakings in Newsline.

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