Biden’s rules plan teases work priorities in the absence of the EEOC (3)


The U.S. Department of Labor plans to issue new regulations later this year that would update the current wage and benefit standards for federally funded construction projects, an initiative aligned with the proposed high priority infrastructure of the Biden administration.

A proposed rule– scheduled for November – “would update and modernize regulations implementing Davis-Bacon and related laws to provide greater clarity and improve their usefulness in the modern economy,” the agency said in the biannual regulatory program of Spring released Friday by the White House.

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

Building unions have long called for an update of Davis-Bacon – the federal wage law in effect in 1931 for federal public works – that could lead to higher wage demands for contractors on such projects. It would take on added significance if Congress enacted a new jobs bill that included billions of dollars in investment to repair bridges, roads and other infrastructure.

The DOL’s agenda also revealed that it includes a proposed rule for July that would implement the presidential decree to raise the minimum wage for federally contracted employees to $ 15 an hour.

Reflecting a recurring theme in the Biden administration’s inaugural regulatory timeline, employment agencies are still scrambling to roll back Trump administration rules deemed too business-friendly. For example, DOL’s Employment and Training Administration plans to propose a rule in August repealing a 2020 regulation that established a new model for apprenticeship programs that transferred government oversight to industry groups. .

The department’s wages and hours division, which is responsible for regulating and enforcing construction wages and the executive decree rule of federal contractors, has presented strong regulatory plans in other areas, although at a later stage of administration.

On its long-term list of items with no estimated arrival dates, the division included a proposal to re-regulate overtime eligibility, a project teased by Labor Secretary Marty Walsh on Wednesday that would likely extend wages time and a half to more workers. .

Safety, Contractors, Benefits

The most important action of the DOL’s Occupational Safety and Health Administration is a decision to move forward with the long-standing airborne infectious disease rule and publish a notice of regulatory proposal. in December 2021 (RIN: 1218-AC46).

The notice would open the door to public comment on the possible requirements of the rule.

Rule making started in 2010, but the last major action came in 2014, when OSHA completed the mandatory review of how small businesses could comply with the proposal.

Unlike OSHA’s new temporary emergency Covid-19 standard, the infectious disease rule could apply to a wide range of diseases, including tuberculosis, measles, severe acute respiratory syndrome (SARS) and drug-resistant staphylococcal bacterial infections. While the rule is primarily aimed at the healthcare industry, it could apply to other workplaces where there is a “high risk” of infection.

In addition, the Office of Federal Contracting Compliance Programs at DOL is moving forward with plans to overturn a controversial Trump-era rule that expanded religious exemptions federal contractors can lift to protect themselves from liability for discrimination.

States and unions have sued to block the rule, alleging it arms religious freedom against LGBT workers.

OFCCP also prepares proposals which update rules governing how the agency resolves complaints of discrimination against contractors, and would consider modifications linked to an executive decree that bans LGBT prejudice.

Meanwhile, the benefits arm of DOL has ended months of speculation that it will revamp the definition of a pension plan trustee and expressly allow socially conscious investment in workers’ 401 (k) plans. .

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

The agency also plans to draft streamlined pension plan reporting requirements under the SECURE Act of 2019 and redefine the priority for bankruptcy trustees to use the DOL’s discontinued plan program to end claims. plans.

Absence of the EEOC

This is the first time since 1994 that the EEOC has not approved a regulatory program, spokeswoman Christine Saah Nazer said. A requirement began that year for the commission’s five-member steering group to approve regulatory plans by majority vote.

“Full compliance of the EEOC with established regulatory standards continues,” said Nazer.

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

The latest Trump-era EEOC regulatory plan featured regulations that addressed issues such as worker incentives for company-sponsored welfare programs and conciliation to resolve allegations of bias in the venue. work as an alternative to litigation.

But the civil rights agency did not publish in the Federal Register its proposed rules on wellness plan incentives before the president Joe biden, and froze them in February.

Its final rule on conciliation is also being overturned via the Congressional Review Act. The rule required the EEOC to 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 the other on union organizers’ access to union information lists. voters – and implement a new rule requiring businesses and unions to fill out more disclosure forms. when a matter is brought before the commission.

The ownership proposal was intended to give employers more leeway to ban union activity on their land, with a focus on restricting access to union organizers who are not employees. It no longer appears on the unified agenda.

The worker contact proposal reportedly indicated that employers did not have to hand over workers’ personal email addresses, home phone numbers and cell phone numbers to union organizers. This proposal now appears on the agency’s long-term action list with no date given for a final rule.

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

The council’s agenda also includes an item keeping video conferencing as an option for public hearings following the end of the Covid-19 pandemic, pending a public comment period.

DACA to the role

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

USCIS is funded by the fees it charges people applying for visas and green cards, revising its budget every two years to establish a new set of fees. DHS Secretary Alejandro mayorkas suggested at a conference Thursday that the agency would increase costs but show leniency regarding waivers of fees applicants cannot afford.

An attempt by the Trump administration to revise the fee schedule was blocked in a federal court last year. DHS plans to reverse this rule-making effort and roll out a new schedule to recoup USCIS operating costs, in accordance with the regulatory agenda.

It also plans to set a fee for premium processing, which allows some visa and green card applicants to speed up their applications, and establish new immigration benefits for which premium processing may be available.

Also on the agenda: draft revised rule for the “employer-employee relationship” of highly skilled H-1B visa applicants, whose definition the Trump administration has attempted to narrow down to get rid of a contract model used by recruitment companies; 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 unsuccessful legislative efforts, the program has faced legal challenges, including one filed by a group of Republican lawyers in U.S. District Court. of the Southern District of Texas.

The new initiative, titled “Preserving and Strengthening Deferred Action for Childhood Arrivals,” builds on a memorandum released by Biden in January, ordering DHS – in consultation with the United States Attorney General – to strengthen the program and says Homeland Security will engage in a notice. and comment on the development of rules to achieve this goal.

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