The second year of the Trump administration has been filled with controversies, but the labor agencies’ deregulatory approach generally has been positive for the business community. Much remains to be done to reverse the holdover effects of the previous administration’s anti-business agenda, but federal labor agencies are slowly reviewing and retracting some of the most burdensome regulations.
Nlrb Reverses Course
Throughout most of 2017, the National Labor Relations Board (NLRB) remained under the control of pro-labor holdovers from the Obama administration. However, after Republican nominees were finally confirmed, the NLRB reversed three important Obama labor rulings in December 2017.
In the Boeing case, the new 3-2 Republican majority declared an end to the NLRB’s unduly restrictive standard of review for employee handbooks. Overturning previous rulings that found neutral handbooks to somehow interfere with employee rights, the NLRB in Boeing specifically upheld employer “no camera” policies in the workplace. But the board further declared that all workplace policies that are neutral on their face should be upheld in future cases so long as they do not unduly infringe on employee rights and are supported by legitimate business reasons. This is a significant win for employers in the construction industry.
In PCC Structurals, again by a 3-2 vote, the NLRB declared an end to inappropriate “micro units” in union elections, which the Obama administration had encouraged in a controversial 2011 case known as Specialty Healthcare. The new NLRB ruling requires regional officials to give greater weight to employer evidence that petitioned-for election groups of employees share communities of interest with other workers.
Finally, a 3-2 vote in the Hy-Brand case overturned the prior board’s radical expansion of the so-called “joint employer” doctrine, which had threatened to disrupt labor relations in the construction industry, among many other business sectors. Unfortunately, in an unprecedented action, an improperly delegated panel of Democrat-majority members of the NLRB voted to vacate the Hy-Brand decision in March 2018, leaving the joint employer issue in a state of some confusion. It is nevertheless expected that confirmation of John Ring as a new Republican board member will eventually lead to resolution of this and other pending issues in a way that will reduce regulatory burdens on employers.
Another significant action by the new NLRB was the issuance of a request for information (RFI) regarding the impact of the 2015 “quickie” election rules enacted during the Obama administration. Associated Builders and Contractors (ABC) and many other groups filed comments in support of changes to the election rules. The NLRB is now considering the comments and is expected to issue a notice of proposed rulemaking in the not too distant future.
PLA Battles Continue
The Trump administration’s efforts to pass a meaningful infrastructure bill in 2018 has raised the stakes regarding ABC’s efforts to stop all government-mandated project labor agreements (PLAs) on taxpayer-funded construction projects. ABC remains hopeful that the Trump administration will act in favor of fair and open competition in the construction industry on both federal and federally assisted infrastructure improvement projects.
President Obama’s executive order encouraging PLAs remains in effect, and rescission of this wasteful order is long overdue.
Twenty-four state governments already have prohibited state government entities from forcing contractors to sign PLAs as a condition of performing work on public construction projects. More state governments are expected to sign similar PLA neutrality laws in the coming year, and Congress is considering federal legislation to the same effect in the Fair and Open Competition Act, supported by ABC.
Every union-sponsored legal challenge to such laws has been defeated, and studies continue to show that PLAs increase taxpayer costs by reducing fair competition without achieving any significant benefits.
DOL Expected to Rescind ‘Persuader’ Reporting Rule
As of this writing, the U.S. Department of Labor (DOL) is expected to publish a new rule rescinding the Obama administration’s unlawful 2016 “persuader advice” rule, which attempted to undo more than 50 years of enforcement policy under the Labor Management Reporting and Disclosure Act.
The Obama rule calls for employers and their advisors (lawyers, consultants and even trade associations) for the first time to file public reports describing any advice that “indirectly persuades” employees regarding unionization or collective bargaining. After ABC and several other business groups sued in federal court to block the Obama rule from taking effect, a federal judge issued an injunction, and the Trump labor department reconsidered it.
The new rule has been sent to the Office of Management and Budget for final clearance. It is widely expected that the DOL will rescind the Obama rule in its entirety. If so, employers confronting union organizing efforts will be able to obtain lawful advice on how to respond and communicate with their employees without having to file burdensome and intrusive reports with the DOL. This would be an important victory for the business community.
OSHA Begins Enforcement of Silica, Beryllium and Injury Reporting Rules
On March 25, 2017, OSHA published a new exposure standard for respirable crystalline silica. The final rule lowers the permissible exposure limit (PEL) from the 250 micrograms per cubic meter of air to 50 micrograms per cubic meter of air, averaged during an eight-hour day, with limited exceptions. Despite opposition from a broad coalition of business groups, the Court of Appeals for the D.C. Circuit upheld the tougher OSHA standard in late 2017, declaring that the new standard is “feasible.” Nevertheless, negotiations over the interpretation of some aspects of the “Table I” enforcement continue, and some modest changes are expected.
Enforcement of OSHA’s final rule on occupational exposure to beryllium, which likewise increases compliance burdens for businesses, began May 11, 2018. The new standard points directly to the construction task of abrasive blasting operations that use slags that contain trace amounts of beryllium.
Another significant regulation undergoing review by the DOL is the Obama administration’s changes to the injury reporting rules. Effective Dec. 1, 2016, the previous administration imposed unprecedented anti-retaliation requirements that effectively prohibited employers from routinely requiring drug tests following workplace accidents and from awarding incident-based safety incentives to employees.
Those rules remain in effect as of this writing, and in December 2017, OSHA put into effect the electronic reporting of injuries. The Trump administration is reconsidering some aspects of the new rules, which have not yet been announced.
‘White Collar’ Overtime Rule Change Remains Under Review
In 2016, at President Obama’s direction, the DOL issued a new rule that radically increased the minimum salary for executive, administrative and professional employees to be exempt from being paid overtime under the Fair Labor Standards Act. ABC, along with many other business groups, sued the department in federal court and succeeded in blocking the new overtime rule from taking effect.
In 2017, Secretary of Labor Alex Acosta announced a RFI on how to reconsider the court-enjoined overtime rule. The DOL’s reconsideration is still ongoing at this time. Meanwhile, President Trump’s nominee to be the new Wage and Hour Administrator has not yet been confirmed, further delaying the review process. Still, it is expected that a less disruptive white collar overtime rule will be issued.
New Ofccp Leadership Announces Transparency Goals; eeoc Remains Under Control of Obama Appointees
Labor Secretary Acosta has appointed Ondray Harris as the new director of the Office of Federal Contract Compliance Programs (OFCCP). This agency enforces the many anti-discrimination and affirmative action requirements for government contractors, including the construction industry. Director Harris has announced the intent to increase transparency and reduce the level of confrontation that existed between OFCCP and the contracting community during the Obama administration, while continuing to enforce the agency’s statutory mission.
The Equal Employment Opportunity Commission (EEOC), remained under the control of Obama appointees throughout the entire first year of the Trump presidency. The confirmation process for new Republican members of the agency has been stalled in the U.S. Senate. At a time when the #metoo movement and other discrimination concerns has heightened the need for clear administrative agency guidance to the business community, it is regrettable that the EEOC has continued to operate without a full complement of Trump-appointed members.
