Government Affairs

February 2023 Government Affairs Update

FTC Proposes Rule to Ban Noncompete Agreements

The Federal Trade Commission (FTC) recently issued a proposed rule which would ban noncompete agreements between nearly all employers and their workers. Under the proposed rule, employers would be restricted from entering into non-compete clauses with workers and are also required to rescind any existing noncompete agreements. In its findings, the FTC claims that noncompetes constitute an unfair method of competition and violate Section 5 of the Federal Trade Commission Act

Specifically, the FTC’s new rule would make it illegal for an employer to:

  • Enter into or attempt to enter into a noncompete with a worker;
  • Maintain a noncompete with a worker; or
  • Represent to a worker, under certain circumstances, that the worker is subject to a noncompete.

The proposed rule would apply to independent contractors and anyone who works for an employer, whether paid or unpaid. It would also require employers to rescind existing noncompetes and actively inform workers that they are no longer in effect. The proposed rule would generally not apply to other types of employment restrictions, like non-disclosure agreements. However, other types of employment restrictions could be subject to the rule if they are so broad in scope that they function as noncompetes.

OSHA Announces New Enforcement Guidance on Workplace Hazards

The Occupational Safety and Health Administration (OSHA) recently announced that it has issued new enforcement guidance to deter employers that fail to comply with certain workplace safety and health requirements. OSHA Regional Administrators and Area Office Directors now have the authority to cite certain types of violations as “instance-by-instance citations” for cases where the agency identifies “high-gravity” serious violations of OSHA standards specific to certain conditions where the language of the rule supports a citation for each instance of non-compliance.

These conditions include lockout/tagout, machine guarding, permit-required confined space, respiratory protection, falls, trenching and for cases with other-than-serious violations specific to recordkeeping. The new guidance covers enforcement activity in general industry, agriculture, maritime and construction industries, and becomes effective 60 days from Jan. 26, 2023. The current policy has been in place since 1990 and applies only to egregious willful citations.

In a second action, OSHA is reminding its Regional Administrators and Area Directors of their authority not to group violations, and instead cite them separately to more effectively encourage employers to comply with the intent of the OSH Act. 

Existing guidance on instance-by-instance citations are outlined in the OSHA Field Operations Manual, and CPL 02-00-080, “Handling of Cases to be Proposed for Violation-by-Violation Penalties.”

2022 OSHA Injury and Illness Data Due by March 2

BSCAI would like to remind members they must electronically submit Form 300A data on workplace injury and illnesses to the Occupational Safety and Health Administration (OSHA) by March 2, 2023. BSCAI members can find OSHA’s injury reporting application here and further guidance on OSHA’s 300A reporting requirements here.

Electronic submissions are required by establishments with 250 or more employees currently required to keep OSHA injury and illness records, and establishments with 20-249 employees classified in specific industries with historically high rates of occupational injuries and illnesses. The electronic reporting requirements are based on the size of the establishment, not the firm. An establishment is defined as a single physical location where business is conducted or where services or industrial operations are performed.

Establishments under Federal OSHA jurisdiction can use the ITA Coverage Application to determine if they are required to electronically report their injury and illness information to OSHA. Establishments under State Plan jurisdiction should contact their State Plan. Covered employers must submit Form 300A data even if they had zero recordable injury or illnesses in 2022.

Injury and illness records must be maintained at the worksite for at least five years. Each February through April, employers must post a summary of the injuries and illnesses recorded the previous year in a noticeable place. Also, if requested, copies of the records must be provided to current and former employees, or their representatives.

United States Hits Debt Ceiling

The Treasury Secretary Janet Yellen recently notified Congress that the federal government has hit the debt ceiling and the Treasury Department will start using financial tools known as “extraordinary measures” to keep the government from defaulting on its financial obligations. These extraordinary measures are expected to keep the government from defaulting on its debt until at least June 5, 2023. Congress will have to statutorily raise the debt ceiling before June 5 to prevent default.

Report: Secretary of Labor Set to Depart Biden Administration

Multiple outlets recently reported that U.S. Secretary of Labor Marty Walsh will be departing the Biden Administration to become the new head of the NHL Players’ Association. It is now yet known when Secretary Walsh will be departing his post. His departure would leave Deputy Labor Secretary Julie Su as the Acting Secretary. President Biden must then nominate a permanent secretary who will need confirmation by the U.S. Senate.

Georgia, Alabama Storm Victims Qualify for Tax Relief

The IRS recently announced that storm victims in parts of Georgia and Alabama now have until May 15, 2023, to file various federal individual and business tax returns and make tax payments, the Internal Revenue Service announced today.

The IRS is offering relief to any area designated by the Federal Emergency Management Agency (FEMA). This means that individuals and households that reside or have a business in Butts, Henry, Jasper, Meriwether, Newton, Spalding and Troup counties in Georgia and Autauga and Dallas counties in Alabama qualify for tax relief. Other areas added later to the disaster area will also qualify for the same relief. The current list of eligible localities is available on Tax Relief in Disaster Situations.

The tax relief postpones various tax filing and payment deadlines that occur starting on January 12, 2023. As a result, affected individuals and businesses will have until May 15, 2023, to file returns and pay any taxes that were originally due during this period.

This includes 2022 individual income tax returns due on April 18, as well as various 2022 business returns normally due on March 15 and April 18. Among other things, this means that eligible taxpayers will have until May 15 to make 2022 contributions to their IRAs and health savings accounts.