October 2022 Government Affairs Update

BSCAI Joins Healthy Workplaces Coalition

Last month, BSCAI formally joined the Healthy Workplaces Coalition which is a non-partisan coalition of leading nonprofits, trade associations, companies and other entities committed to promoting and advocating for safer and healthier workplaces as well as associated federal policies that will help businesses toward this goal. The Coalition’s mission will be centered around raising awareness, ensuring the public, policymakers and businesses understand that workplace health and safety is critical to doing business now and beyond the COVID-19 pandemic. BSCAI’s participation in the Coalition will help strengthen the association’s advocacy efforts and increase its visibility with policymakers in Washington, D.C.

The Coalition was established earlier this year and is made up of over 50 organizations including the International WELL Building Institute, the Worldwide Cleaning Industry Association (ISSA), the American Institute of Architects (AIA), American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE), American Society of Interior Designers (ASID), Building Owners and Managers Association International (BOMA), Green Seal, International Facilities Management Association (IFMA) and U.S. Green Building Council (USGBC). BSCAI will be sure to keep members updated on the latest developments from the Coalition.

DOL Issues Proposed Rule on Independent Contractor Classification

The Department of Labor (DOL) recently published a Notice of Proposed Rulemaking which would change how employers and workers determine whether a worker is an employee or an independent contractor under the Fair Labor Standards Act (FLSA). According to the DOL, the proposed rule would provide guidance on classifying workers and seeks to combat employee misclassification. 

Specifically, the proposed rule would do the following:

• Align the department’s approach with courts’ FLSA interpretation and the economic reality test.
• Restore the multifactor, totality-of-the-circumstances analysis to determine whether a worker is an employee or an independent contractor under the FLSA. 
• Ensure that all factors are analyzed without assigning a predetermined weight to a particular factor or set of factors.
• Revert to the longstanding interpretation of the economic reality factors. These factors include the investment, control and opportunity for profit or loss factors. The integral factor, which considers whether the work is integral to the employer’s business, is also included.
• Assist with the proper classification of employees and independent contractors under the FLSA.
• Rescind the 2021 Independent Contractor Rule issued under the Trump Administration.

BSCAI is currently reviewing the proposed rule and its impact on building service contractors. BSCAI will be sure to keep members update on the latest developments.

DHS to Issue Additional 65,000 H-2B Visas

The Department of Homeland Security (DHS), in consultation with the Department of Labor (DOL), recently announced that it will be issuing a regulation that will make available to employers an additional 64,716 H-2B temporary nonagricultural worker visas for fiscal year (FY) 2023, on top of the 66,000 H-2B visas that are normally available each fiscal year.

The H-2B supplemental includes an allocation of 20,000 visas to workers from Haiti and the Central American countries of Honduras, Guatemala, and El Salvador. The remaining 44,716 supplemental visas will be available to returning workers who received an H-2B visa, or were otherwise granted H-2B status, during one of the last three fiscal years.

The regulation will allocate these remaining supplemental visas for returning workers between the first half and second half of the fiscal year to account for the need for additional seasonal workers over the course of the year, with a portion of the second half allocation reserved to meet the demand for workers during the peak summer season.

Congress Passes Bill to Avert Government Shutdown

Congress recently passed a short-term continuing resolution (CR) to fund the federal government at existing levels through Dec. 16, 2022. The CR also included $12 billion in aid for Ukraine, $2.5 billion in wildfire recovery relief, $1 billion in funding a low-income home heating program, and $20 million in emergency funding to address the water crisis in Jackson, MS. The federal government was set to shut down without action from Congress.

The continuing resolution marks the last major legislative action by the House and Senate before the midterm election in November. Congress will now head back to their districts and states to begin the fall campaign season and return to Washington, D.C. on Nov. 14, 2022.

OSHA Updates Severe Violator Enforcement Program

The Occupational Safety and Health Administration (OSHA) recently expanded criteria for placing employers in the Severe Violator Enforcement Program, which focuses the agency’s inspection resources on employers who either willfully or repeatedly violate federal health and safety laws or demonstrate a refusal to correct previous violations.

The new criteria include violations of all hazards and OSHA standards and will continue to focus on repeat offenders in all industries. Previously, an employer could be in the program for failing to meet a limited number of standards. The changes will broaden the program’s scope with the possibility that additional industries will fall within its parameters.

Specifically, the updated criteria include the following:

• Program placement for employers with citations for at least two willful or repeated violations or who receive failure-to-abate notices based on the presence of high-gravity serious violations.
• Follow-up or referral inspections made one year – but not longer than two years – after the final order.
• Potential removal from the Severe Violator Enforcement Program three years after the date of receiving verification that the employer has abated all program-related hazards. In the past, removal could occur three years after the final order date.
• Employers’ ability to reduce time spent in the program to two years, if they consent to an enhanced settlement agreement that includes use of a safety and health management system with seven basic elements in OSHA’s Recommended Practices for Safety and Health Programs.

IRS Updates Guidance on Work Opportunity Tax Credit

The IRS recently updated information on the Work Opportunity Tax Credit (WOTC), available to employers that hire designated categories of workers who face significant barriers to employment. For employers facing a tight job market, the WOTC may be able to help.

The updates include information on the pre-screening and certification process. To satisfy the requirement to pre-screen a job applicant, on or before the day a job offer is made, a pre-screening notice (Form 8850, Pre-Screening Notice and Certification Request for the Work Opportunity Credit) must be completed by the job applicant and the employer.

After pre-screening a job applicant, the employer must then request certification by submitting Form 8850 to the appropriate state workforce agency no later than 28 days after the employee begins work. Other requirements and further details can be found in the instructions to Form 8850.

Hurricane Ian Victims in Florida and Carolinas Qualify for Tax Relief

The Internal Revenue Service (IRS) recently announced that Hurricane Ian victims throughout Florida, North Carolina and South Carolina now have until February 15, 2023, to file various federal individual and business tax returns and make tax payments.

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 anywhere in the Carolinas or Florida qualify for tax relief. The current list of eligible localities is always available on the disaster relief page on IRS.gov.

The tax relief postpones various tax filing and payment deadlines that occurred starting on September 23, 2022. As a result, affected individuals and businesses will have until February 15, 2023, to file returns and pay any taxes that were originally due during this period.

This means individuals who had a valid extension to file their 2021 return due to run out on October 17, 2022, will now have until February 15, 2023, to file. The IRS noted, however, that because tax payments related to these 2021 returns were due on April 18, 2022, those payments are not eligible for this relief.