2015 Winter Regulatory Alert

ABC’s Regulatory Alert provides an overview of federally mandated rules, regulations and enforcement actions from the U.S. Department of Labor (DOL), Environmental Protection Agency (EPA) and other federal agencies. Following are brief summaries of current issues, as well as links to more detailed information and guidance. If you have any questions, email regulatory@abc.org
Additional information and resources are available in Newsline and ABC’s Academy for Construction Ethics, Compliance and Best Practices.


Compliance Information:
Federal Contractors:
Health Care Law:

NLRB Issues Final “Ambush” Elections Rule  
On Dec.12, 2014, the National Labor Relations Board (NLRB) issued a controversial final rule overhauling its procedures for union representation elections, commonly known as the “ambush” elections rule. The changes are currently scheduled to take effect April 14, 2015, unless a court or Congress blocks enforcement of the new rule. Under the final rule, the amount of time between a union filing a representation petition and an election taking place will be dramatically reduced from the current average of 38 days.
The shortened time period for union elections will place a premium on employers’ rapid response to union organizing activity. Employers are encouraged to speak with their labor counsel now about putting a rapid response plan in place for management because they may not get a second chance to prepare for sudden union organizing activity. 
ABC of Texas and the Central Texas Chapter of ABC filed a joint lawsuit with the National Federation of Independent Business Texas challenging the NLRB’s final rule. The legal challenge was filed in the U.S. District Court for the Western District of Texas. A motion for summary judgment was filed Feb. 9, 2015. ABC will continue to keep members updated through Newsline

  New OSHA Reporting Requirements (Effective Jan.1, 2015)  
The Occupational Safety and Health Administration (OSHA) issued a final rule that requires contractors to face new deadlines for reporting severe injuries on the jobsite. The rule took effect Jan. 1, 2015, for all employers covered by the Occupational Safety and Health Act—even those that are exempt from maintaining injury and illness records.
Contractors are now required to notify OSHA within eight hours if there is a work-related fatality on the job and within 24 hours when an employee suffers a work-related hospitalization, amputation or loss of an eye. On Jan. 15, 2015, OSHA issued a Letter of Interpretation clarifying the new reporting standard.  
Employers can report incidents electronically through OSHA’s new web portal in addition to phone reporting options.

 Contractors Required to Post OSHA 300A Form (Effective Feb. 1, 2015)  
The 2014 OSHA Form 300A work-related injury and illness log summaries must be posted in a visible spot on all construction sites Feb. 1 through April 30. 
The summaries, which list the total number of job-related injuries and illnesses that occurred in 2014 and were logged on the employer's OSHA Form 300A, must be certified by a company executive and displayed in an area where notices to employees are typically posted. Employment information about the average number of employees and total hours worked during the calendar year also is required. Companies with no recordable injuries or illnesses in 2014 must still post the form, with zeros on the total line.
Employers with 10 or fewer employees or those in certain industries may be exempt from OSHA recordkeeping requirements. Check if your firm is required to post a summary and download copies of the OSHA Form 300A.

 EEOC Enforcement Guidance on Pregnancy Discrimination  
On July 14, 2014, the U.S. Equal Employment Opportunity Commission (EEOC) released an updated document titled Enforcement Guidance on Pregnancy Discrimination and Related Issues (Enforcement Guidance). 
The Enforcement Guidance covers the following issues:
  • extent of the Pregnancy Discrimination Act (PDA) coverage: current pregnancy, past pregnancy, potential or intended pregnancy and medical conditions related to pregnancy or childbirth;
  • evaluating PDA-covered employment decisions: disparate treatment and impact;
  • equal access to benefits under the PDA: light duty, leave and parental leave;
  • reasonable accommodation under the Americans with Disabilities Act (ADA);
  • Family Medical Leave Act; 
  • Executive Order 13152 prohibiting discrimination based on status as a parent; 
  • reasonable break time for nursing mothers; and
  • best practices for employers. 
The following documents are available from the EEOC to provide employers the information they need to know: 
ABC’s general counsel, Littler Mendelson, P.C., issued an analysis that includes some important compliance steps employers should take.  

OSHA Extends Cranes and Derricks Compliance Deadline Until 2017
On Sept. 26, 2014, OSHA issued a final rule extending the compliance deadline for employers to ensure that crane operators are certified by an OSHA-recognized accredited certification body. The deadline has been extended by three years to Nov. 10, 2017. Under the extension, employers must continue to ensure crane operators are competent to operate a crane safely, as previously required.  
On Oct. 23, 2014, OSHA issued a directive for OSHA compliance personnel on how to enforce its 2010 standard for construction cranes and derricks. The directive, which covers jobsites where power-operated equipment covered by Subpart CC – Cranes and Derricks in Construction are present, provides guidance for OSHA inspectors on how to conduct site visits, interpret the rule and decide when to issue citations.  
In addition to the directive, OSHA provides compliance assistance on the revised 2010 standard on its Cranes and Derricks Safety web page. The site provides information on equipment requirements for assembly and disassembly, qualified rigger, signal person qualifications and wire rope inspections.

 NLRB Allows Use of Corporate Email Systems for Union Organizing   
The NLRB issued a 3-2 split decision along party lines Dec. 11, 2014, stating that employees are permitted, except in very limited circumstances, to use corporate email systems during non-work time for union organizing (Section 7 activities). The Board’s decision overturns the 2007 decision in Register Guard
For more information on the Purple Communications decision, see Littler Mendelson’s analysis.

What to Expect in 2015 
The federal regulatory agenda was published Nov. 21, 2014, and lists the actions federal agencies expect to complete during 2015. 
To learn more about a specific agency's agenda, see the following Newsline stories:

  VETS Rule Requires Federal Contractors to Report Aggregate Veteran Data in 2015 
On Sept. 25, 2014, the U.S. Department of Labor’s (DOL) Veterans' Employment and Training Service (VETS) issued a final rule that changed the reporting requirements for federal contractors and subcontractors that hire and employ veterans under provisions of the Vietnam Era Veterans' Readjustment Assistance Act of 1974.
The new rule, which is applied to reports filed beginning in 2015, replaces the requirement for some federal contractors to report the number in each protected veteran category (recently separated veteran, armed forces service veteran and disabled veteran) and instead requires contractors to report the total number of protected veterans they employ and hire on a new form.

OFCCP Final Rule Prohibits Discrimination Based on Sexual Orientation and Gender Identity 
The DOL’s Office of Federal Contract Compliance Programs issued a final rule Dec. 9, 2014, implementing Executive Order 11246, which prohibits federal contractors from discriminating against lesbian, gay, bisexual and transgender (LGBT) employees, and prohibits discrimination based on gender identity in federal employment.
Under the final rule, contractors must include an updated equal opportunity clause in new or modified contracts. The regulations take effect April 8, 2015, and apply to federal contractors that hold contracts entered into or modified on or after April 8, 2015. 
For more information on the final rule, visit the DOL’s website.

Federal Contractor Minimum Wage Final Rule Issued
On Oct. 7, 2014, DOL’s Wage and Hour Division issued a final rule to implement Executive Order 13658, which establishes an hourly minimum wage of $10.10 for workers on covered federal construction and service contracts. The final rule applies to new contracts and replacements for expiring contracts with the federal government that result from solicitations issued on or after Jan. 1, 2015, or to contracts that are awarded outside the solicitation process on or after Jan. 1, 2015. Beginning Jan. 1, 2016, the minimum wage will be determined annually by the Secretary of Labor. 
For more information, see the DOL’s fact sheet and FAQs.
On July 29, 2014, ABC submitted comments in opposition to the proposed rule and argued that the proposal should be withdrawn or substantially modified. ABC pointed out that most of its government contractor members already pay the substantial majority of their employees at wage rates higher than the newly promulgated wage of $10.10. 
More information on the regulation can be found in Newsline

Employer Mandate Effective in 2015 for Some Employers
The Department of Treasury and the Internal Revenue Service (IRS) issued a final rule  Feb. 10, 2014, implementing the employer mandate provisions included in the Affordable Care Act (ACA). 
Effective Jan. 1, 2015, employers with 100 or more full-time employees and full-time equivalent employees must offer full-time employees a certain level of health coverage or be subject to a penalty. Detailed guidance about complying with the employer mandate is available here.
Employers with 50 to 99 full-time employees and full-time equivalents are not required to comply with the employer mandate until 2016 (provided they meets certain IRS certification requirements). However, such employers are subject to the information reporting requirements under Internal Revenue Code (IRC) sections 6055 and 6056 in 2015.
Employers with fewer than 50 full-time employees and full-time equivalents do not have to comply with the employer mandate. However, small employer health plans are required to cover “essential health benefits” (effective 2014). Further, small employers that self-insure will be subject to IRC section 6055 in 2015.
An overview of key ACA provisions for employers with 50 or more employees is available here.
An overview of key ACA provisions for employers with up to 50 employees is available here.
An overview of key ACA provisions for employers with fewer than 25 employees is available here.
More information on the employer mandate can be found in ABC's Health Care Law Employer Toolkit
*Employers are encouraged to consult counsel and/or their insurance brokers about complying with the ACA in 2015 and beyond.

Information Reporting Requirements Effective in 2015 
On March 10, 2014, the Treasury Department and IRS issued final rules on information reporting requirements under IRC sections 6055 and 6056
Under the ACA’s reporting requirements, employers with 50 or more full-time employees and full-time-equivalent employees—as well as employers of any size that self-insure—are required to report certain information about the type of health insurance coverage offered (IRC sections 6055 and 6056) to the IRS. Employers must collect the information required to be reported in 2015 and file the information reporting returns with the IRS in 2016. In addition to filing information returns with the IRS, an employer must provide a related statement to each full-time employee under section 6056 and to each covered individual under 6055.
Applicable large employers (50 or more full-time employees and full-time-equivalent employees) can learn more about section 6056 here. Information about monthly tracking and the new IRS forms can be found here.
Self-insuring employers (of any size) can learn more about 6055 here. Note: An applicable large employer that self-insures is required to report under both sections 6055 and 6056, but can use a single form to satisfy reporting obligations under both sections. 
ABC Insurance Trust has a tracking workbook available that can help you keep track of your reporting requirements on a monthly basis.  To receive a copy, please contact Sam Melamed at Melamed@abc.org.
More information on the information reporting requirements can be found in ABC's Health Care Law Employer Toolkit
*Employers are encouraged to consult counsel and/or their insurance brokers about complying with ACA in 2015 and beyond.

ABC’s Health Care Law Employer Toolkit
ABC’s Health Care Law Employer Toolkit (login required) is a one-stop shop of resources to help employers navigate their way through the ACA. The toolkit includes reference guides, webinars, PowerPoint presentations, government resources and much more.
ABC’s Health Care Law Employer Toolkit is updated regularly; visit it today on ABC’s website!