Labor Department Updates Regulatory Agenda

At the end of December, the U.S. Department of Labor (DOL) released its 2012 Statement of Regulatory Priorities, commonly known as the regulatory agenda. Initially, the agenda was scheduled to be released last fall, but was 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, DOL did not announce any new regulations in the newly-released agenda.  However, the agency did provide notice of several updates.  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 – which were first announced in 2010 and 2011 – with regard to the affirmative action requirements of direct federal contractors as they relate to veterans and 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 the rule regarding individuals with disabilities, click here.  For more information on the veterans rule, 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. National Labor Relations Board The National Labor Relations Board (NLRB) listed the Quickie Elections rule as a long term action on its agenda, presumably due to the legal challenges to whether the NLRB was legally able to issue the rule.  The agenda did not address the NLRB’s Notice Posting Rule as a priority, also being challenged in court. For more information on both the Quickie Elections Rule and the Notice Posting Rule, please click here. Department of Labor The Department of Labor’s (DOL) attention continues to focus on finalizing a Persuader rule. DOL’s Office of Labor-Management Standards rule 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 DOL.  This rule will significantly impact employers’ ability to retain counsel.  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 (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. For more information, please contact Jim Young at (202) 547-0133 or youngj@agc.org.