Government Affairs

December Government Update

BSCAI Joins Coalition Comments on NLRB Joint Employer Rule

BSCAI signed on to comments from the Coalition for Democratic Workplace asking that the National Labor Relations Board (NLRB) adopt the proposed Joint Employer rule with clarifying definitions. Under the proposed rule, an employer may be found to be a joint employer of another employer’s employees only if it possesses and exercises substantial, direct, and immediate control over the essential terms and conditions of employment, and has done so in a manner that is not limited and routine. Indirect influence and contractual reservations of authority would no longer be sufficient to establish a joint-employer relationship.

Deviating from the long-held standard for joint employer liability, in 2015 the NLRB under President Barack Obama broadened the definition of what constitutes a joint employment relationship. In the case involving Browning-Ferris Industries, the Board decided that a joint employment relationship could exist even when companies have “indirect or unexercised control” over workers.

The coalition suggested two clarifying amendments to strengthen the proposed rule. First, it suggested better defining what constitutes “essential terms and conditions of employment.” Second, the coalition suggested an explicit list of direct and immediate control that does not qualify as affecting the essential terms and conditions.

Click here to view a draft copy of the comments.

OSHA’s Most Commonly Cited Standards for Fiscal Year 2018

Each year the Occupational Health and Safety Administration (OSHA) issues its top 10 most frequently cited standards following inspections of worksites by its inspectors. The list does not change substantially from year to year. For fiscal year 2018, which ended on September 30, the top 10 standards were –

  1. Fall protection in construction (1926.501)
  2. Hazard communication standard for general industry (1910.1200)
  3. General requirements for scaffolding in construction (1926.451)
  4. Respiratory protection for general industry (1910.134)
  5. Control of hazardous energy (lockout/tagout) for general industry (1910.147)
  6. Ladders in construction (1926.1053)
  7. Powered industrial trucks for general industry (1910.178)
  8. Fall protection training requirements (1926.503)
  9. Machine guarding (1910.212)
  10. Eye and face protection (1926.202)

Of particular note for companies classified as janitorial services (NAICS Code 561720), hazard communications was the second most commonly cited standard. Another citation with relevance for building service contractors is respiratory protection, which was the fourth most commonly cited OSHA standard.

For the same period, the top 10 cited OSHA standards for inspection of janitorial services companies were:

  1. Hazard Communications (1910.1200)
  2. Fixed Ladders (1910.0027)
  3. Safety Requirement for Scaffolding (1910.0028)
  4. Control of Hazardous Energy (lockout/tagout) (1910.147)
  5. Other Working Surfaces (1910.0030)
  6. General Requirements (1910.0132)
  7. Eye and Face Protection (1910.133)
  8. Respiratory Protection (1910.134)
  9. Medical Services and First Aid (1910.0151)
  10. Bloodborne Pathogens (1910.1030)

Note that several of the violations relate to wearing proper protective equipment and when a worker is above the ground using a ladder or scaffolding. It is incumbent on safety personnel to stay on top of any issues to avoid fines and inspections from OSHA.

Federal Court Rules Affordable Care Act is Unconstitutional

On December 14, U.S. District Court Judge Reed O’Connor ruled the entire Affordable Care Act (ACA)—that regulates large portions of the American health care system—is unconstitutional. However, O’Connor did not issue a nationwide injunction. Therefore, the ACA remains unchanged although it does create some additional uncertainty for the health care system as a whole.

A group of Republican state Attorneys General brought the lawsuit claiming that the ACA is unconstitutional since Congress repealed the individual mandate last year requiring individuals to purchase or otherwise obtain health insurance. In his 55-page opinion, O’Connor wrote that the individual mandate “is essential to and inseverable from the remainder of the ACA.” And as such, the remainder of the ACA is unconstitutional.

In June, the Trump Administration told the court that it would not defend the ACA in the lawsuit. That created the unusual situation where some Democratic state Attorneys General were defending the federal law. The defendants in the case plan to appeal the ruling to the U.S. Court of Appeals for the 5th Circuit.

Senate Moves Forward with First Step Act

This week, the Senate is expected to pass the First Step Act (H.R. 5682, S. 3649), which would reform the criminal justice system and includes vocational training for prisoners in an effort to reduce recidivism rates. Similar legislation passed in the House of Representatives in May by a vote of 360 to 59. President Donald Trump announced his support for the legislation last month.

As employers in a variety of industries struggle with a shortage of skilled workers, including in building services, the legislation would help train individuals leaving prison for in-demand jobs. The bipartisan bill would decrease the mandatory minimum sentence for non-violent drug crimes as part of an effort to help people leaving prison re-enter communities. Congress is expected to approve a final version, followed by Trump signing it, before the end of the year.

Donald Trump Threatens Partial Government Shutdown

President Donald Trump has threatened to shut down the government if the latest spending agreement approved by Congress does not include $5 billion to fund construction of a wall along the U.S. – Mexico border. A temporary spending bill that funds many government programs is set to expire on December 22. Congressional Democrats have offered to extend the funding agreement into next month but President Trump has resisted as he senses that this may be his last chance for border wall funding.

President Trump may be hoping that as the deadline approaches, congressional Republicans and Democrats will care more about going home than anything else. It is difficult to imagine the Administration’s leverage on border wall funding improving in the next Congress where Democrats will control the House of Representatives for the first time since 2011

House Tries Again on Year-End Tax Bill

After failing to bring a tax bill to the floor in late-November, Rep. Kevin Brady (R-TX), Chairman of the House Ways Committee, hopes to have better luck this time. Chairman Brady wanted to bring legislation to the House floor that would retroactively extend for another year over two dozen tax incentives that expired at the 2017. However, the bill was pulled from the House floor on November 29, after complaints from Republicans regarding the excise tax level paid by coal companies for miners’ health benefits.

Chairman Brady introduced a new bill last week in hopes of garnering enough votes before Congress heads home for the holidays. The new legislation does not include many of the expired tax provisions but would extend the Health Insurance Tax moratorium through 2022. At present, the tax on fully insured health care plans has been repealed for 2019 but is set to go back in effect for 2020.