The U.S. Department of Labor (DOL) recently released another update to its regulatory agenda, including several items those in the construction industry should be following. In addition to providing updates on numerous Occupational Safety and Health Administration rulemakings and the controversial proposal to narrow the “advice” exemption for persuaders and other labor relations advisers, the DOL’s agenda contained updated timeframes for pending rules addressing apprenticeship, affirmative action and the classification of independent contractors. In addition, the agency laid out for the first time its plan to issue a new proposed rule regarding overtime eligibility.
Below is a list of DOL regulations that are most concerning for the construction industry.
Equal opportunity in apprenticeship
DOL’s Employment Training Administration’s (ETA) plans to revise the equal employment opportunity regulatory framework for the National Apprenticeship Act remains on DOL’s agenda. The proposal would revise the actions construction contractors are required to take to implement affirmative action programs in areas of recruitment, training and apprenticeship.
ETA aims to release its proposal by September.
Construction-specific affirmative action requirements
DOL’s Office of Federal Contract Compliance Programs (OFCCP) plans to make additional changes to the affirmative action obligations for federal construction contractors. This agenda item follows on the heels of the OFCCP’s 2013 finalization of rules drastically altering federal contractors’ existing affirmative action and nondiscrimination obligations for individuals with disabilities and veterans — the former of which is currently subject to a legal challenge by Associated Builders and Contractors. The new changes are expected to include an entirely new framework for regulating the industry and establish a new “mega” class of construction projects.
OFCCP plans to publish a proposed rule by January.
Overtime requirements
In March, President Barack Obama issued a memorandum directing DOL to “modernize and streamline” overtime regulations for executive, administrative and professional employees. The action has the potential to affect all employers covered under the Fair Labor Standards Act (FLSA), including the majority of construction contractors, subcontractors and suppliers.
While no details have been made public, DOL is believed to be considering an increase in the current overtime regulation’s salary threshold from $24,000 to $50,000. In addition, DOL likely will make significant changes to the current test used to determine whether an employee’s duties and responsibilities exempt him or her from overtime requirements.
A proposal to implement the president’s directive, which will be issued by DOL’s Wage and Hour Division (WHD), is expected by November, with no estimated date for finalization.
SEE ALSO: Putting safety first in construction
‘Right to Know’
WHD has made no changes to its long-planned “Right to Know” proposal, which is still relegated to the long-term action portion of the agenda (reserved for items under development but which the agency does not expect to take action on until the publication of the next semi-annual regulatory agenda). The proposal would have required employers to provide written analyses to workers classified as independent contractors and employees deemed to be exempt from overtime under the FLSA.
This proposal remains dormant; however, there is a possibility WHD will incorporate aspects of this unpublished rulemaking into its upcoming overtime proposal.
Although the DOL’s regulatory agenda lists the priorities of the administration and the rulemakings they expect to release this year, the agency is not required to adhere to the timeline. That doesn’t mean construction contractors and other industry professionals shouldn’t pay attention to upcoming rulemakings and proposals that could end up affecting their business.
Dan Brodbeck is the founder, president and CEO of Compass Partners LLC, Brentwood, Tenn.
For more information on ABC, visit www.abc.org or call (202) 595-1505.
