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Biden Rules Plan Teases Labor Priorities With EEOC Absent (3)

June 11, 2021, 2:26 PM; Updated: June 11, 2021, 8:02 PM

The U.S. Labor Department plans to release a new regulation later this year that would update the prevailing wage and fringe benefits standards for federally funded construction projects, an initiative aligned with the Biden administration’s high-priority infrastructure proposal.

A proposed rule—slated for November—would “update and modernize the regulations implementing the Davis-Bacon and Related Acts to provide greater clarity and enhance their usefulness in the modern economy,” the agency said in the semiannual spring regulatory agenda published Friday by the White House.

The Biden administration’s first regulatory plan covers a wide range of workplace enforcement priorities, from safety and federal contracting to labor relations, immigration, and retirement benefits. Notably absent from the agenda, however, is the U.S. Equal Employment Opportunity Commission for the first time in more than two decades.

Building trades unions have long called for an update to Davis-Bacon—the government’s 1931 federal public works prevailing wage law—that could lead to higher wage requirements for contractors on such projects. That would take on added significance if Congress were to enact a new jobs bill providing billions of dollars in investments to repair bridges, roads, and other infrastructure.

The DOL’s agenda also revealed that it’s slating a proposed rule for July that would implement the president’s executive order to boost the minimum wage for employees on federal contracts to $15 an hour.

Reflecting a theme running through the Biden administration’s inaugural regulatory calendar, labor agencies are still working to roll back Trump administration rules deemed overly friendly to businesses. For instance, the DOL’s Employment and Training Administration is projecting to propose in August a rule rescinding a 2020 regulation that established a new model for apprenticeship programs that transferred oversight from the government to industry groups.

The department’s Wage and Hour Division, which is charged with regulating and enforcing construction wages and the federal contractor executive order rule, showcased robust rulemaking plans in other areas, albeit at a later stage in the administration.

On its long-term list of items without estimated arrival dates, the division included a proposal to re-regulate overtime pay eligibility, a project teased by Labor Secretary Marty Walsh Wednesday that would likely extend time-and-a-half wages to more workers.

Safety, Contractors, Benefits

The DOL’s Occupational Safety and Health Administration’s most significant action is a decision to move forward with the long-stalled airborne infectious disease rule and issue a notice of proposed rulemaking in December 2021 (RIN:1218-AC46).

The notice would open a door for public comment on the rule’s possible requirements.

The rulemaking was initiated in 2010 but the last significant action was in 2014 when OSHA completed the mandatory review of how small businesses might comply with the proposal.

Unlike OSHA’s new Covid-19 emergency temporary standard, the infectious disease rule could apply to a wide-range of illnesses, including tuberculosis, measles, Severe Acute Respiratory Syndrome (SARS), and drug-resistant staph bacterial infections. While the rule is primarily aimed at the health-care industry, it could apply to other workplaces where there is “high risk” of infection.

Additionally, the DOL’s Office of Federal Contract Compliance Programs is moving forward with plans to rescind a controversial Trump-era rule that broadened religious exemptions federal contractors can raise to shield themselves from discrimination liability.

States and labor unions sued to block the rule, alleging it weaponizes religious liberty against LGBT workers.

The OFCCP also is planning proposals that would update rules governing how the agency resolves discrimination claims against contractors, and would consider modifications related to an executive order that prohibits LGBT bias.

Meanwhile, the DOL’s employee benefits arm put to rest months of speculation that it would retool the definition of a retirement plan fiduciary and expressly permit socially conscious investing in worker 401(k) plans.

The Employee Benefits Security Administration will expand on the Trump-era fiduciary definition that applied to more investment advisers, but put in place a less-strict best-interest standard and clarify the role that environmental, social, and corporate governance investments can play in private-sector plans.

The agency also plans to draft simplified retirement plan reporting requirements called for under the 2019 SECURE Act and re-prioritize permitting bankruptcy trustees to use the DOL’s Abandoned Plan Program to terminate plans.

EEOC’s Absence

This is the first time since 1994 that the EEOC didn’t approve a regulatory agenda, said spokeswoman Christine Saah Nazer. A requirement began that year for the commission’s five-member leadership panel to approve rulemaking plans by majority vote.

“The EEOC’s full compliance with established rulemaking standards continues,” Nazer said.

Despite the change in administrations, the agency currently maintains a 3-2 Republican majority.

The EEOC’s last regulatory plan from the Trump era featured rulemaking that addressed issues including worker incentives for company-sponsored wellness programs and conciliation to resolve workplace bias claims as an alternative to litigation.

But the civil rights agency didn’t publish in the Federal Register its proposed rules on wellness plan incentives before President Joe Biden‘s inauguration, and froze them in February.

Its final rule on conciliation is also undergoing reversal via the Congressional Review Act. The rule mandated the EEOC share more information with employers during the dispute resolution process.

NLRB Rules Strategy

The National Labor Relations Board plans to indefinitely delay two Trump-era proposals—one on union access to employer-owned property and another on union organizers’ access to voter information lists—and implement a new rule requiring businesses and unions to file more disclosure forms when a case comes before the board.

The property proposal sought to give employers more leeway to prohibit union activities on their land, with a focus on restricting access to union organizers who aren’t employees. It no longer appears on the unified agenda.

The worker contact proposal would have said that employers don’t have to turn over workers’ personal email addresses, home phone numbers, and cellphone numbers to union organizers. That proposal now appears on the agency’s list of long-term actions with no date listed for a final rule.

The new proposal on disclosure forms seeks to shed light on whether a board member has a conflict of interest, an apparent response to the controversy over member William Emanuel’s participation in a 2017 case that involved his former law firm. It will be directly published as a final rule sometime this month, according to the unified agenda.

The board’s agenda also includes an item keeping video conferencing as an option for public hearings after the Covid-19 pandemic ends, pending a period for public comment.

DACA on the Docket

The administration plans to adjust application fees charged by U.S. Citizenship and Immigration Services, a unit of the Department of Homeland Security, in a bid to stave off the agency’s budget problems.

USCIS is funded by fees it charges to people applying for visas and green cards, reviewing its budget every two years to lay out a new set of fees. DHS Secretary Alejandro Mayorkas suggested during a conference Thursday that the agency would raise costs but show leniency on waiving fees applicants can’t afford.

A Trump administration attempt to overhaul the fee schedule was blocked by a federal court last year. DHS plans to rescind that rulemaking effort and roll out a new schedule aimed at recovering USCIS operating costs, according to the regulatory agenda.

It also plans to set fees for premium processing, which allows some visa and green card seekers to expedite their applications, and establish new immigration benefits for which premium processing can be available.

Also on the agenda: plans to revise a rule for high-skilled H-1B visa applicants’ “employer-employee relationship,” the definition of which the Trump administration tried to narrow to get rid of a contracting model used by staffing firms; and a rule to preserve a program protecting some 700,000 young immigrants from deportation, known as Deferred Action for Childhood Arrivals, or DACA.

Created by a 2012 executive order from then-President Barack Obama after failed efforts at legislation, the program has faced legal challenges, including one lodged by a group of Republican attorneys at the U.S. District Court for the Southern District of Texas.

This newest initiative, titled “Preserving and Fortifying Deferred Action for Childhood Arrivals,” builds off a memorandum issued by Biden in January, directing DHS—in consultation with the U.S. attorney general—to buttress the program and says Homeland Security will engage in notice-and-comment rulemaking to achieve that goal.

(Updated with comment from the EEOC under the second subhead.)

To contact the reporters on this story: Ben Penn in Washington at bpenn@bloomberglaw.com; Paige Smith in Washington at psmith@bloomberglaw.com; Bruce Rolfsen in Washington at BRolfsen@bloomberglaw.com; Lydia O'Neal in Washington at loneal@bloombergtax.com; Austin R. Ramsey in Washington at aramsey@bloombergindustry.com; Ian Kullgren in Washington at ikullgren@bloombergindustry.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com; Travis Tritten at ttritten@bgov.com

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