Search
You are here:   Governmental Affairs > Regulatory Alert


December 2015 ABC's Regulatory Alert provides an overview of federally mandated rules, regulations and enforcement actions from the U.S. Department of Labor (DOL), Environmental Protection Agency (EPA) and other federal agencies.
Following are brief summaries of current issues, as well as links to more detailed information and guidance. If you have any questions, email regulatory@abc.org
 
Additional information and resources are available in Newsline and ABC's Academy for Construction Ethics, Compliance and Best Practices.



IN THIS ALERT:


National Labor Relations Board: 
-- NLRB Decision in Browning-Ferris Case Redefines Joint Employer Standard
-- NLRB General Counsel Releases New Report on Employee Handbooks
-- ABC Challenge to NLRB's Quickie Election Rule Reaches Appeals Court as NLRB Continues Enforcement
 
Department of Labor:
-- Final Persuader Rule Expected in 2016
-- DOL Issues Rule Revising EEO Framework for National Apprenticeship Act
-- More than 900 ABC Members Urged DOL to Withdraw Proposed Overtime Rule
-- DOL Issues Guidance on Independent Contractor Classification
 
Federal Contractors
-- FAR Council Issues Proposed Rule to Implement Blacklisting Executive Order
-- White House Issues Paid Sick Leave Executive Order Targeting Federal Contractors
-- OFCCP Issues Final Pay Transparency Rule for Federal Contractors
-- DOL Updates Hiring Benchmark for Protected Veterans
 
Safety, Health and Environment Regulations: 
-- OSHA's Confined Spaces in Construction Rule Now in Effect
-- OSHA Issues New Employer Recordkeeping Proposal
-- EEOC Issues Proposed Rule on Employer Wellness Programs
-- Appeals Court Places Nationwide Stay on WOTUS Rule  
-- FAA Issues Proposed Rule on Drone Operation and Certification
-- Affordable Care Act Update: Employer Mandate and Information Reporting Requirements
 
ABC Member Toolkits:
-- ABC's Health Care Law Employer Toolkit
-- ABC's Rapid Response Toolkit to Union Organizing  



NLRB Decision in Browning-Ferris Case Redefines Joint Employer Standard 

 
On Aug. 27, the National Labor Relations Board (NLRB) issued its decision in the Browning-Ferris Industries of
California
case  redefining the qualifications for a "joint employer" under the National Labor Relations Act (NLRA).
For 30 years, only employers that shared "direct and immediate" control over the essential terms and conditions of employment were considered joint employers. Under the new standard, businesses that exercise only "indirect control" over these conditions could be considered joint employers if they have a common law employment relationship with the workers in question and could take part in meaningful
collective bargaining. 
 
On Sept. 9, legislation was introduced in the U.S. House of Representatives and the U.S. Senate to counteract the ruling. The Protecting Local Business Opportunity Act (S.2015 / H.R.3459) would provide additional stability for contractors,
subcontractors and their employees by restoring the decades-old standard. Ahead of the markup, ABC sent a letter to
Chairman Rep. John Kline (R-Minn.) and Ranking Member Rep. Bobby Scott (D-Va.) thanking them for acting on this important bill.
 
ABC is encouraging all members to voice their support for the Protecting Local Business Opportunity Act to their representatives in Congress through the ABC Action Center or through the ABC Action App on both iPhone and
Android devices. 



NLRB General Counsel Releases New Report on Employee Handbooks

On March 18, the NLRB Office of the General Counsel continued its focus on workplace policies by releasing a report
on employee handbooks
. Construction industry employers and their attorneys should pay close attention to the report, as it discusses and provides examples of lawful and unlawful handbook polices and rules. The report covers a range of topics, including confidentiality rules, employee conduct and criticism, third-party communications, use of company trademarks and copyrights, employee recordings, conflict-of-interest policies and restrictions on employees' right to leave the premises. At the
same time, a number of the NLRB cases on which the General Counsel relies have been appealed to the courts, and the outcome of the Board's attacks on employee handbook policies remains unsettled.
 
ABC General Counsel Maury Baskin has developed a model employee handbook for use by ABC members. ABC member companies and ABC chapters may request a copy of the handbook at regulatory@abc.org.



ABC Challenge to NLRB's Quickie Election Rule Reaches Appeals Court as NLRB Continues Enforcement


The NLRB's controversial rule speeding up union elections took effect April 14, 2015. More than 1,400 union petitions already have been processed under the new rule. As predicted, the amount of time from petition to election has declined, from 39 days on average down to 24 days, leaving employers with less time to educate their employees. 
 
ABC of Texas, the Central Texas Chapter of ABC and the National Federation of Independent Business Texas continue to challenge the rule in the U.S. Court of Appeals for the 5th Circuit, where the case remains pending at this time. 



Final Persuader Rule Expected in 2016 
 
U.S. Department of Labor's (DOL) controversial "persuader" rule recently reached the Office of Management and Budget and is listed on the regulatory agenda as being finalized in March 2016. The proposal would severely narrow longstanding reporting
exemptions for employers and third-party experts and redefines labor relations "advice." It will greatly restrict employers' ability
to receive third-party advice to educate their employees about collective bargaining. Actions that were previously considered privileged communications or advice would now carry onerous requirements for employers, attorneys and association staff. ABC will continue to keep members updated through Newsline.



DOL Issues Rule Revising EEO Framework for National Apprenticeship Act
 
The DOL issued a proposed rule revising the equal employment opportunity regulatory framework for the National Apprenticeship Act on Nov. 6. Current regulations prohibit discrimination in registered apprenticeship programs on the basis of race, color, religion, national origin and sex. The proposed rule updates the equal opportunity standards to include age (40 or older), genetic information, sexual orientation and disability among the protected base that cannot be discriminated against. It requires sponsors to take affirmative action to provide equal opportunity in the registered apprenticeship programs. 
 
The public has until Jan. 5, 2016, to submit written comments. For more information on the proposal, visit http://www.doleta.gov/oa/eeo/.
 


More than 900 ABC Members Urged DOL to Withdraw Proposed Overtime Rule
 
ABC and more than 900 of its members submitted comments in opposition to the DOL's Wage and Hour Division July 6th proposal that would change federal overtime exemptions for administrative, executive, professional and computer professional
employees—the so-called "white collar" worker classifications that have long been exempt from time-and-one-half pay for working more than 40 hours per week. 
 
The DOL's proposed rule would affect both public and private work by all employers that are covered under the Fair Labor Standards Act (FLSA), which includes the vast majority of construction contractors, subcontractors and suppliers. Specifically, the rule proposes to increase the minimum salary level to the 40th percentile of weekly earnings for full-time salaried workers—a level the DOL estimates to reach $50,440 in 2016. The current salary threshold is $23,660 per year. Also, the DOL proposes to automatically update the salary and compensation levels on an annual basis to the 40th percentile or by reference to the Consumer Price Index for all Urban Consumers. The proposal does not announce immediate changes to the standard duties test; however, the DOL asked a series of questions seeking comment on whether the current tests are "working as intended," and there is concern the agency will announce changes to the duties test in the final rule. On the latest regulatory agenda, the agency listed a final rule in July 2016



DOL Issues Guidance on Independent Contractor Classification

On July 15, the DOL's Wage and Hour Division released new guidance on the classification of independent contractors. Even though the guidance does not constitute a formal rule, Administrator David Weil's interpretation and accompanying blog post warn employers that the FLSA definition of employees is "very broad" and that six economic reality factors must be applied to determine employment status. The independent contractor title is irrelevant. The new guidance is widely viewed as signaling the DOL's intent to enforce the FLSA more strictly against employers accused of misclassifying their employees as independent contractors.
 
Contractors are encouraged to review the Administrator's interpretation, its prescribed tests and their associated examples, several of which involve the construction industry. 

For more information, watch ABC's archived webinar "The Assault on Independent Contractors." A login is required.



FAR Council Issues Proposed Rule to Implement Blacklisting Executive Order


As directed by President Obama's July 31, 2014, sweeping Executive Order 13673, deceptively named "Fair Pay and Safe Workplaces," but known to the business community as "blacklisting," the Federal Acquisition Regulatory (FAR) Council released a proposed rule, and the DOL issued proposed guidance on May 27, 2015, intended to implement the President's Order. 
 
The proposals would require federal contractors and subcontractors for the first time to disclose any "violations" of 14 federal  labor laws occurring in the three years prior to any procurement for federal government contracts/subcontracts exceeding $500,000, in addition to requiring updated disclosures of labor law violations every six months while performing covered  government contracts. Reported violations may then be used to disqualify contractors and/or subcontractors from performing federal work, based on a complicated and a seemingly unconstitutional set of procedures proposed by the federal agencies.
 
ABC has consistently opposed the blacklisting proposal as unfair to contractors, their employees and taxpayers. On Aug. 26,  ABC submitted comments  urging the withdrawal of the FAR Council's proposed rulemaking and the DOL's Notice of Proposed Guidance implementing the executive order. The latest regulatory agenda listed a final rule in April 2016.  



White House Issues Paid Sick Leave Executive Order Targeting Federal Contractors

On Sept. 7, President Obama issued Executive Order 13706, "Establishing Paid Sick Leave for Federal Contractors," requiring federal contractors and subcontractors to allow at least seven days of paid sick leave for employees working under contracts governed by the Davis-Bacon Act and the Service Contract Act. Employees may use this leave to tend to a personal illness, to obtain diagnostic or preventative care from a physician, or to care for family members. This order departs from previous DOL policy that permits contractors to treat such leave as a fringe benefit.  
 
The DOL has until Sept. 30, 2016, to issue final regulations, and the FAR Council will incorporate the rule into federal regulations within 60 days of their issuance. Beginning Jan. 1, 2017, the new provision will appear in all new contracts.
 
ABC will continue to provide updates on the executive order through Newsline. For more information, see the related White House Fact Sheet.



OFCCP Issues Final Pay Transparency Rule for Federal Contractors
 
On Sept. 10, the DOL's Office of Federal Contract Compliance Programs (OFCCP) issued its final rule prohibiting federal contractors and subcontractors from terminating or otherwise discriminating against employees who discuss their compensation with coworkers or job applicants. 
 
This rule implements the Obama administration's equal pay initiative under Executive Order 13665 ("Prohibitions Against Pay Secrecy Policies and Actions") and will take effect Jan. 11, 2016. The final rule includes all federal contractors with contracts that exceed $10,000 in value entered into or modified on or after the effective date of the rule. Contractors that are subject to the rule may not retaliate against employees or applicants who "inquire about, discuss, or disclose" information on their pay or the pay that other employees receive. However, there is an exception if an employee or applicant makes the disclosure based on
information obtained while performing his or her essential job functions. 
 
Additional information and guidance on compliance and frequently asked questions by employers and employees are available



DOL Updates Hiring Benchmark for Protected Veterans
 
On April 21, the DOL's OFCCP adjusted its Vietnam Era Veterans' Readjustment Assistance Act (VEVRAA) Benchmark Database from a 7.2 percent to a 7 percent annual national benchmark for federal contractor hiring of protected veterans. Under final VEVRAA regulations that took effect in March 2014, federal contractors are allowed to establish a hiring benchmark for veterans based on "the current national percentage of veterans in the workforce." Contractors also can choose to set up an individual benchmark based on a five-factor method.



OSHA's Confined Spaces in Construction Rule Now in Effect


On May 4, 2015, OSHA issued its final rule defining confined space safety procedures in the construction industry. Specifically, the rule identifies a confined space as one that has limited means of entry and/or exit, is large enough for a worker to enter it, and is not intended for regular or continuous occupancy. This rule is similar to the general industry standard (29 CFR 1910.146), but emphasizes training, monitoring, evaluating and communication on multi-employer sites. The final rule is in effect. 
 
OSHA has created a number of compliance materials for small businesses, including a small entity compliance guide.  Additionally, members can visit ABC's Academy for Construction Ethics, Compliance & Best Practices and view an archived webinar "Confined Spaces in Construction: The Big Picture" to learn more about the final rule. ABC's strategic partner CNA also has produced a guide to safety in confined spaces along with several online training courses.



OSHA Issues New Employer Recordkeeping Proposal

On July 29, OSHA issued a proposed rule to clarify an employer's obligation to make and maintain accurate records of reportable injuries and illnesses. The proposal extends the employer's ongoing obligation to accurately report workplace injuries and illnesses from six months to five years after an initial report should have been made.
 
The proposal seeks to reverse the ruling by the U.S. Court of Appeals for the District of Columbia in the Volks II case that confines OSHA to a six-month statute of limitations when citing a company for failure to record an injury or illness. The court also held that OSHA cannot treat such an event as a continuing violation throughout the five-year recordkeeping period.
 
On Oct. 27, the ABC-led Coalition for Workplace Safety submitted comments urging the agency to withdraw the proposed rule.



EEOC Issues Proposed Rule on Employer Wellness Programs 


On April 20, the Equal Employment Opportunity Commission (EEOC) issued a proposed rule related to employer wellness programs. The proposed rule  amends regulations under the Americans with Disabilities Act to provide guidance on the extent to which employers may use incentives to encourage employees to participate in wellness programs that include disability-related inquiries and/or medical examinations. 
 
ABC and its coalition partners submitted comments  on Sept. 19 urging the EEOC to reconsider key aspects of the proposed rule. ABC's general counsel has provided an overview of the proposed rule.
 
On Oct. 30, the EEOC issued another proposed rule under the Genetic Information Nondiscrimination Act (GINA) that would authorize employers who offer wellness programs to provide inducements for an employee's spouse, who is also a participant in the employer's health plan, to disclose their current or past health information. The public has until Jan. 28 to submit written comments. 



Appeals Court Places Nationwide Stay on WOTUS Rule
 
On Oct. 9, the U.S. 6th Circuit Court of Appeals placed a nationwide stay on the Obama Administration's controversial Waters of the United States (WOTUS) final rule. The final rule, issued by the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers on May 27, greatly expands the Administration's jurisdiction over water and land uses across the country under the Clean Water Act. 
 
The final rule is being challenged on the grounds that the federal agencies went further than the statute permits. In a split decision, the court explained, "A stay temporarily silences the whirlwind of confusion that springs from uncertainty about the requirements of the new rule and whether they will survive legal testing." This comes after a recent decision by a North Dakota federal judge blocking implementation in 13 states. 
 
ABC has been a vocal opponent of WOTUS  since it was proposed in April 2014. ABC National and more than 50 ABC chapters submitted comments  urging the EPA to withdraw its proposed rule. As a member of the Waters Advocacy Coalition, ABC also filed comments along with a group of 375 trade associations led by the U.S. Chamber of Commerce.



FAA Issues Proposed Rule on Drone Operation and Certification

On Feb. 23, the U.S. Federal Aviation Administration (FAA) issued a long-anticipated proposal  addressing the commercial use of small unmanned aircraft systems (UAS) (under 55 pounds), also referred to as drones. This proposal covers both the operational limits on drone use and guidelines for operator certification and responsibility.  
 
On April 24, ABC submitted comments on the proposed rule to offer its input on how the proposal will affect the construction industry's ability to use drones on project sites. The latest regulatory agenda lists the final rule in April 2016.
 
For detailed information on the proposed rule, see the FAA summary of provisions or the FAA website
 


Affordable Care Act Update:Employer Mandate and Information Reporting Requirements

Effective Jan. 1, 2016, under the employer mandate provisions of the Affordable Care Act (ACA), employers with 50-99 full-time employees and full-time equivalent employees (applicable large employers) must offer full-time  employees (and dependents) minimum essential coverage that is affordable and provides minimum value or be subject to heavy penalties.  The employer mandate took effect Jan. 1, 2015, for employers with 100 or more full-time employees and full-time equivalent employees. To learn more about the employer mandate and to determine if it applies to you, click here.
 
Additionally, the ACA includes new onerous information reporting requirements under Internal Revenue Code (IRS) sections 6055 and 6056 that apply to employers with 50 or more full-time employees and full-time-equivalent employees, as well as employers of any size that self-insure. Effective for the 2015 calendar year, employers are required to collect certain information about the health coverage they offer and, in the first quarter of 2016, report such information with the IRS. To learn more about  he reporting requirements, click here.

To learn about the reporting requirements and important upcoming deadlines, view the members-only webinar and Power Point presentation, "Compliance Alert—Learn About the Affordable Care Act's New Reporting Requirements for 2015 " presented by ABC's general counsel, Littler Mendelson. A login is required.
 
Additionally, on Jan. 27 at 2 p.m. EST, Littler Mendelson will present a webinar titled "Health Care Reform Update – Learn How The Affordable Care Act Will Impact Your Company in 2016 and Beyond."
 
*Employers are encouraged to consult counsel and/or their insurance brokers about complying with ACA.



ABC's Health Care Law Employer Toolkit 


ABC's Health Care Law Employer Toolkit (members-only login required) is a one-stop shop of resources to help member companies navigate their way through the ACA. The toolkit includes reference guides, webinars, PowerPoint presentations, government resources and much more.
 


ABC's Rapid Response Toolkit to Union Organizing
 
As a result of the NLRB's final ambush election rule, ABC has created a Rapid Response Toolkit to Union Organizing (members-only login required) for member companies. Under the final rule, the amount of time between a union filing a representation petition and an election taking place is dramatically reduced. The shortened time period for union elections will place a premium on employers' rapid response to union organizing activity.
 



This is intended for informational purposes only and does not constitute legal advice or opinion.