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President Biden and his allies in Congress have continued working with Senator Joe Manchin to reach an agreement for a Democrat-only reconciliation package. Reports indicate that Manchin remains open to a targeted bill that reduces the deficit and inflation and invests approximately $500 billion in clean energy technologies, financed through tax increases. Democrats need to pass the measure before the August recess or risk failing to enact a partisan spending bill before the midterm elections this fall.
Additionally, lawmakers are working on the fiscal year 2023 (FY23) appropriations process, including funding the federal government, which expires September 30th. The House and Senate appropriations committees have held hearings to examine various agency funding levels.
Here is an exclusive update from TAUC on the policy and regulatory issues of vital interest to contractors and the union construction and maintenance industry in Washington, DC.
Department of Labor (DOL) Prepares Employee Misclassification Rule
On June 3rd, the Department of Labor (DOL) released a blog post discussing worker misclassification and independent contractor standards. The Biden administration has worked to combat worker misclassification, including reversing a Trump administration DOL rule adjusting the standard for independent contractor determination – which TAUC and allied organizations have argued exacerbated misclassification issues. However, a district court overturned the reversal earlier this March, reinstating the Trump-era precedent.
Rather than continue engaging through the appeals process, DOL plans to issue a new rule on determining employee or independent contractor status under the Fair Labor Standards Act.
The department intends to hold a public forum for businesses and worker-oriented associations to provide feedback ahead of the rulemaking. There will be two panels:
The Biden administration previously advocated for a broader, multifactor independent contractor status test and called for employers to consider the totality of the circumstances.
U.S. Innovation and Competition Act and America COMPETES Act
Congress also continues to try to reach an agreement on resolving the disagreements of the House and Senate versions of legislation to increase the U.S. ability to compete on innovation and technology development – including expanding computer chip manufacturing capacity. The House of Representatives passed the America COMPETES Act (H.R. 4521) by a vote of 222-210. This is the House companion bill to S. 1260, the U.S. Innovation and Competition Act. Both the House and Senate versions of these bills maintained the Davis-Bacon prevailing wage protections to the tax incentives authorized under the bill to build domestic semiconductor manufacturing capacity. The House and Senate are currently in conference attempting to resolve the difference between their respective versions of the bill. Completion of this legislation remains a major priority for this Congress.
OSHA Advisory Committee on Construction Safety and Health Meeting
The Occupational Safety and Health Administration (OSHA) will host an online meeting of the Advisory Committee on Construction Safety and Health on June 15th. The day before, the Infrastructure Workgroup will meet from 10 AM to 12 PM, the Education, Training and Outreach Workgroup from 1 PM to 3 PM, and the Emerging and Current Issues Workgroup from 3:10 PM to 5:10 PM. Submission of comments and requests to speak closed on June 9th.
The Contract Work Hours and Safety Standards Act, also known as the Construction Safety Act (CSA), created the committee to advise the Secretary of Labor and Assistant Secretary of Labor for Occupational Safety and Health on relevant policy matters and construction standards. Secretary Marty Walsh recently appointed Kenneth G. Seal to be the employee representative on the committee. Discussions of the Construction Focus Four initiative, a training program for effective techniques to deal with hazards, and continued dialogue on occupational COVID-19 exposures will occur. The meeting will also include an agency update from Assistant Secretary of labor for Occupational Safety and Health Doug Parker and an update on the construction industry from the Directorate of Construction. The workgroups will present their reports during the meeting.
OSHA NACOSH Meeting and Heat Injury and Illness Prevention Work Group Update
On Monday, June 6th, OSHA issued a Notice of Meeting, announcing that the National Advisory Committee on Occupational Safety and Health (NACOSH) will meet virtually on June 30th. The NACOSH Heat Injury and Illness Prevention Work Group will meet separately that day. Submission of comments and requests to speak at the NACOSH are due by June 23rd, 2022. OSHA is not receiving public comments or requests to speak at the Heat Work Group meeting.
The Heat Injury and Illness Prevention Work Group will present findings on developing a heat-specific workplace standard. The public comment period for the rulemaking process closed on January 26th, 2022. The Work Group aims to establish clear employer obligations to protect employees from hazardous heat.
DOL’s Wage and Hour Division (WHD) Holds Prevailing Wage Seminar
On June 14th and 15th, the DOL Wage and Hour Division (WHD) will informational webinars for Davis-Bacon and Service Contract Act compliance. These sessions are a part of WHD initiatives to bolster awareness and compliance with federal prevailing wage requirements. Registration is required and can be found through this link.
WHD Submits Notice of Proposed Revision to Davis-Bacon Survey Collection
On June 10th, the WHD submitted a notice of proposed revision to the Federal Register regarding the information collection titled “Report of Construction Contractor’s Wage Rates.” WHD proposes changing the WD-10 form to improve data collection of the Davis-Bacon and Related Acts (DBRA) survey process, including easing burdens for respondents.
WHD is providing 60 days to submit comments following notice in the Federal Register. Comments can be submitted by email to WHDPRAComments@dol.gov or by mail to the Division of Regulations, Legislation, and Interpretation, Wage and Hour Division, U.S. Department of Labor, Room S-3502, 200 Constitution Avenue NW, Washington, DC 20210.