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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 Academy for Construction Ethics, Compliance and Best Practices (login required).

Use the links below to jump to a specific topic.

Compliance Information
  -- OFCCP Directive Addresses Hiring Policies Related to Criminal Records
  -- OFCCP Rescinds Guidance Documents on Compensation Procedures
  -- DOL Issues FMLA Final Rule
  -- Updated I-9 Form
  -- New Design Values for Southern Pine Lumber

Compliance Assistance
  -- OSHA Issues Fact Sheets on Crystalline Silica
  -- New Members-Only Resource for Regulatory Compliance 

 What to Expect in 2013
  -- Anticipated Rulemakings in 2013
  -- "Persuader" Rulemaking Expected in 2013

 Legal Update 
  -- NLRB to Seek Supreme Court Review of "Recess" Appointment Decision 

ABC Comments
  -- Health Care Law-Employer Shared Responsibility Provisions

 Compliance Webinars 
  -- Fringe Benefits Compliance Overview
  -- Confronting Union Bannering  

OFCCP Directive Addresses Hiring Policies Related to Criminal Records 

The Office of Federal Contract Compliance Programs (OFCCP) Jan. 29 issued a directive, effective immediately, that offers information to federal contractors and subcontractors on complying with nondiscrimination provisions, particularly related to criminal record restrictions and discrimination based on race and national origin. 

According to the OFCCP, the directive is designed to provide guidance on:
  • the circumstances in which exclusions of applicants or employees based on their criminal records may violate existing nondiscrimination obligations;
  • the Training and Employment Guidance Letter (TEGL) 31-11 issued on May 20, 2012 to the American Job Center network and other covered entities in the public workforce system by the Department of Labor’s (DOL) Employment and Training Administration and Civil Rights Center; and
  • the Enforcement Guidance issued by the Equal Employment Opportunity Commission on April 25, 2012.
Employers are encouraged to speak with counsel regarding the OFCCP directive.

OFCCP Rescinds Guidance Documents on Compensation Procedures 

Effective Feb. 28, the OFCCP released new procedures for reviewing contractor compensation programs and practices. As part of the change, OFCCP rescinded two documents from 2006 on Standards and Voluntary Guidelines: “Interpreting Non-Discrimination Requirements of Executive Order 11246 with Respect to Systematic Compensation Discrimination” and “The Voluntary Guidelines for Self-Evaluation of Compensation Practices for Compliance with Executive Order 11246 with Respect to Systematic Discrimination.” 

The agency stated the new procedures allow for greater transparency on investigating pay discrimination. However, by rescinding the guidance documents, OFCCP has eliminated a previous “safe harbor” for government contractors attempting to comply with the agency’s unclear nondiscrimination requirements regarding equal pay to job groups of employees based on race, sex and other protected classes. It remains to be seen what the impact of this change will be on contractor efforts to comply with OFCCP’s requirements.

OFCCP compliance information is available on their website:

DOL Issues FMLA Final Rule

DOL recently issued a final rule related to military caregivers and exigency leaves for employers that are covered under the Family Medical Leave Act (FMLA). 

Several of the changes in the FMLA final rule became effective on March 8, such as military caregiver leave for veterans, qualifying exigency leave for parental care and the special leave calculation method for flight crew employees. Further, employers covered under FMLA are required to post the new FMLA poster immediately and make sure their policies comply with the new FMLA requirements.

Updated I-9 Form 

The Department of Homeland Security U.S. Citizenship and Immigration Services (USCIS) March 8 released a revised I-9 Form. Employers are required to fill out and retain an I-9 Form for all employees verifying their employment eligibility, including U.S. citizens and non-citizens. 

Beginning May 7, all employers are required to use the new I-9 Form (with a revision date of March 8, 2013) and those that do not use the revised form may be subject to penalties. New I-9 Forms do not need to be completed for current employees.

New Design Values for Southern Pine Lumber

The American Lumber Standard Committee (ALSC) Jan. 30 approved design value changes for all grades and sizes of visually graded Southern Pine lumber. The ALSC recommended an effective date of June 1 for the design values. 

Certain design value changes were approved in 2012 based on the recommendation from the Southern Pine Inspection Bureau (SPIB), but the ALSC did not consider the remaining design value changes until January, after a number of hearings on the issue. 

The new Southern Pine lumber design values can found at SPIB’s website.

OSHA Issues Fact Sheets on Crystalline Silica

OSHA recently published seven new educational resources to help employers control exposure to respirable crystalline silica at construction sites. The new fact sheets provide information for employers and workers who operate handheld grinders, angle grinders, jackhammers, rotary hammers, stationary masonry saws, handheld masonry saws or vehicle-mounted drilling rigs.

OSHA is moving forward with a proposed rule that would alter the permissible exposure limits of crystalline silica dust. The proposed rule not only would lower the exposure limits, but also would set new requirements on engineering controls and regulated areas. OSHA lists the proposed rule for May 2013 on the agenda; it has been under review at the Office of Management and Budget since Feb.14, 2011

For more information, visit OSHA's Crystalline Silica Safety and Health Topics Page and read OSHA's educational publication on Controlling Silica Exposures in Construction (PDF).

New Members-Only Resource for Regulatory Compliance 

ABC recently launched the Academy for Construction Ethics, Compliance and Best Practices, a new members-only resource that is an educational one-stop-shop for members to access all the materials merit shop contractors need to learn more about industry trends, compliance and best practices.

The Academy includes regulatory guidance, articles, studies and webinars (upcoming and archived) organized by topic. The website will be updated frequently as new information becomes available.

The Academy can be accessed under the Education and Training tab on the ABC website after logging in. To obtain login information, ABC members should email [email protected] and include their name, company and ABC chapter.

Anticipated Rulemakings in 2013

The federal regulatory agenda was published on December 21, 2012, and lists the actions federal agencies expect to complete within the 12-month period. The regulatory agenda is slated with many controversial rulemakings for 2013. 

To learn more about a specific agency’s agenda, please see the related Newsline story:

“Persuader” Rulemaking Expected in 2013 

DOL plans to proceed with a proposed rule that would greatly expand the circumstances in which third party advice, used by employers to inform employees about their rights to collective bargaining, would need to be reported by the employer and the third party (which would include attorneys and association staff). The disclosure requirement, as written, includes money paid for such services. 

The so-called “persuader” rule is listed on the agenda with a finalization date of April; however, DOL is not required to adhere to the timeline. In addition, the agenda has listed a date of November for issuing a proposed rule that will expand the LM-21 Reporting Form for consultants or “persuaders.”

ABC will continue to monitor this rulemaking and will notify members through Newsline of any developments.

NLRB to Seek Supreme Court Review of “Recess” Appointment Decision 

The National Labor Relations Board (NLRB) announced Mar. 12 it will file a petition with the U.S. Supreme Court for review of a Jan. 25 appeals court decision, which found President Obama’s “recess” appointment of members to the board in early 2012 to be unconstitutional. 

The appeals court decision potentially invalidates all NLRB rules and decisions issued during the past year because the board did not have a quorum. This includes the controversial “ambush” elections rule, which the Coalition for a Democratic Workplace (CDW) filed a request to block in January, citing the Noel Canning decision. On Feb. 19, the U.S. Court of Appeals for the District of Columbia Circuit issued an order of abeyance on an appeal of the NLRB’s controversial “ambush” elections rule. The order suspends consideration of the appeal “pending further order of the court.” The NLRB's notice poster rule also remains on hold pending the outcome of pending appeals in the federal courts.

Health Care Law—Employer Shared Responsibility Provisions 

As part of the Employers for Flexibility in Health Care Coalition (E-FLEX), ABC March 15 submitted comments to the Department of Treasury and the Internal Revenue Service (IRS) in response to a Dec. 28 proposed rule on the employer shared responsibility provisions in the Patient Protection and Affordable Care Act (PPACA). 

In the comments, the coalition discussed that employers of all sizes are concerned about implementing the employer requirements under PPACA and that significant employer education is needed before the requirements become effective in 2014.

The coalition pointed out that employers are still missing key pieces of guidance needed to construct their systems, make plan design changes and communicate with their employees. As such, E-FLEX suggested using 2014 as a transition period for all employers offering health coverage in order for them to adjust to the significant changes required under PPACA.

Other key areas of concern the E-FLEX Coalition highlighted in their comments were related to: health insurance exchanges, seasonal employees, re-hire rules, affordability, wellness programs, minimum value and non-discrimination.

To learn more about the March 15 comments, please visit the related Newsline story.

Please visit ABC’s Academy for Construction Ethics, Compliance and Best Practices for more information on PPACA compliance and guidance.

Fringe Benefits Compliance Overview 

Join Sam Melamed on Tuesday, April 9 at 2 p.m. (ET) for a webinar on fringe benefits compliance issues related to the Davis-Bacon Act and state prevailing wage laws. To learn more and register for this webinar click here.

Confronting Union Bannering

Join ABC General Counsel Maury Baskin on Thursday, May 23 at 2 p.m. (ET) for a webinar discussing best practices for confronting union bannering. To learn more and register for this webinar click here