July 2023 Government Affairs Update

Congress to Prioritize Appropriations Bills in July

With the debt ceiling agreement signed into law, the most significant agenda item on Congress’s plate is the fiscal year (FY) 2024 appropriations process. Congress must pass twelve appropriations bill by the end of September to fully fund the federal government for FY 2024. The House and Senate Appropriations Committees have begun to draft and introduce these bills with the hopes of passing them in each chamber by the Sept. 30 deadline. If no agreement can be reached between the House and Senate, Congress will have to pass a continuing resolution (CR) to avoid a government shutdown.

OSHA Set to Issue Final Workplace Injury and Illness Reporting Rule

BSCAI has learned that the White House’s Office of Information and Regulatory Affairs (OIRA) has completed its review of the Occupational Safety and Health Administration’s (OSHA) rule to expand employers’ injury and illness reporting requirements. Now that the White House has completed its review, OSHA is expected to publish the final rule in the Federal Register shortly. BSCAI will keep members updated on the details of the final rule once it is published by OSHA. 

Biden Administration Publishes Updated Regulatory Agenda

The Biden Administration recently published its Spring 2023 Regulatory Agenda, which lays out various federal agencies' regulatory plans for this year and beyond. Although aspirational in nature, the agenda provides insight into the Administration’s upcoming regulatory activities and priorities. The Administration has pushed back the target dates for several regulations from their previously released agenda. Below is a timeline of key rulemakings that could impact the industry.  

• Improve Tracking of Workplace Injuries and Illnesses: A final rule is targeted for July 2023.
• Classification of Independent Contractors: A final rule is targeted for August 2023.
• Overtime Rule/White Collar Exemptions: A proposed rule is targeted for August 2023.
• Heat Illness Prevention Standard in Outdoor and Indoor Work Settings: OSHA will be initiating a Small Business Regulatory Enforcement Fairness Act (SBREF) panel in August 2023.
• Infectious Disease Standard: A proposed rule is targeted for March 2024.

NLRB Overturns 2019 Independent Contractor Standard

The National Labor Relations Board (NLRB) recently issued a ruling which applies a stricter standard employers must use to determine whether someone qualifies as an independent contractor. The NLRB overruled its 2019 independent contractor standard which focused on whether workers have “entrepreneurial opportunity” and returned to a common law multi-factor analysis that could lead to more workers being found to have been improperly classified as independent contractors.

Under this “independent-business analysis,” the Board stated that the analysis should turn on the questions of whether the putative contractor: “(a) has a realistic ability to work for other companies; (b) has proprietary or ownership interest in their work; and (c) has control over important business decisions,” such as scheduling, hiring, assignment of employers, purchasing equipment, and committing capital.

The NLRB’s ruling could make it more likely that workers will be found to be employees entitled to the protections under the National Labor Relations Act, including the right to organize a union. The NLRB’s ruling is likely to be challenged in federal court in the coming months. The Department of Labor is also finalizing a rule on independent contractor classification which has not yet been released.