Federal Labor Agencies Update Regulatory Agendas

January 10, 2013
At the end of December, the U.S. Department of Labor (DOL) and the National Labor Relations Board (NLRB) released its 2012 Statement of Regulatory Priorities, commonly known as the regulatory agenda. Initially, the agendas were scheduled to be released last fall, but were delayed presumably due to the November elections.  While agencies often do not adhere to the target dates listed, the agenda is a good indicator of issues the agency wants to address in 2013, which includes several regulations of concern to the construction industry.  Respectfully, neither agency announced any new regulations in the newly-released agendas.  However, the agency did provide notice of several updates. NLRB The NLRB listed the “quickie elections rule” as a long-term action on its agenda, presumably due to pending legal challenges to the rule.  The rule expedites the election process in union representation cases and otherwise revises procedures to unions’ advantage. The agenda did not address the NLRB’s notice posting rule as a priority.  The rule requires nearly all private-sector employers to post certain notices about employee rights under the National Labor Relations Act.  It is also being challenged in court. For more information on both the quickie elections rule and the notice posting rule, please click here. DOL Office of Federal Contract Compliance Programs In 2010, the Office of Federal Contract Compliance Programs (OFCCP) announced that it is working on a Compensation Data Collection Tool to identify contractors violating sex and race-based compensation discrimination laws. AGC submitted comments explaining why the use of a tool such as this one should be modified or not required at all.  The new agenda suggests that details about the tool will emerge in April 2013 in the form of a proposed rule, hopefully with AGC’s suggested modifications. Also expected in April are final rules on the affirmative action requirements of direct federal contractors as they relate to veterans and to individuals with disabilities.  AGC has been active in trying to modify or block both rules. One analysis conducted by AGC uses data provided by AGC members that estimates the cost of compliance as 20 to 30 times more than the cost estimated by OFCCP.  In addition, AGC co-sponsored a study that concludes that comprehensive rules of this nature are unnecessary.  For more information on these rules, click here. The agenda also mentions a plan to issue a proposed rule that would establish a new method for meeting affirmative action goals and requirements for minorities and women in construction – the first change to the process since 1980. A proposed rule is projected for October. Office of Labor-Management Standards The Office of Labor-Management Standards’ (OLMS) attention continues to focus on finalizing a “persuader rule.”  The proposed rule – issued in June 2011 – would limit the “advice” exception under the Labor-Management Reporting and Disclosure Act so that all consultation with labor lawyers and/or consultants will be subject to disclosure to the Labor Department.  This rule could significantly impact employers’ ability to obtain guidance on their rights and responsibilities during a union organizing drive and to obtain assistance in preparing for communications with employees about their own rights and responsibilities.   A final rule is projected for April 2013. For more information on the persuader rule, click here. Occupational Safety and Health Administration OSHA did not offer a time line for drafting a silica rule or recordkeeping rule to require employers to identify musculoskeletal disorders separately on OSHA 300 log forms. The top priority for OSHA continues to be an Injury and Illness Prevention Program (I2P2) rule.  I2P2 would require employers to implement and frequently update an Injury and Illness Prevention Program to address safety and health hazards, beyond those that are currently regulated.  OSHA currently has voluntary Safety and Health Program Management Guidelines.  AGC has encouraged OSHA to remove the requirement that companies develop company-wide safety programs to address these unregulated hazards. Instead, AGC has recommended that OSHA provide simple guidelines to employers to develop and implement an effective safety and health program that focuses on the regulated hazards that are significant threats in the workplace.  A proposed rule is expected in December 2013.
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