September 2022 Government Affairs Update

President Biden Signs Budget Reconciliation Bill

President Biden recently signed the “Inflation Reduction Act” into law. The bill passed Congress last month on a party-line vote and contains $433 billion in new spending for energy and climate change programs along with extending Affordable Care Act (ACA) credits. According to estimates, the bill raises approximately $700 billion in new federal revenue by enacting a 15% corporate minimum tax on businesses with average annual income over $1 billion, enhancing IRS tax enforcement and reforming prescription drug pricing. The bill also enacts a 1% excise tax on stock buybacks and extends existing excess business loss limitation rules for certain pass-through businesses for two years through 2028.

Importantly, Congress removed onerous Estate and the Net Investment Income Tax increases on pass-through entities and small businesses which were originally proposed by Democrats. BSCAI will be closely monitoring the implementation of the new law and will be prepared to address any concerns with the Biden Administration.

Revenue Provisions:

• 15% Corporate Minimum Tax ($1 billion in income): $222 billion
• Prescription Drug Pricing Reform: $265 billion
• IRS Tax Enforcement: $124 billion
• 1% Stock Buybacks Fee: $74 billion
• Loss Limitation Extension: $52 billion

Spending Provisions:

• Energy Security and Climate Change: $369 billion
• Affordable Care Act Extension: $64 billion
• Western Drought Resiliency: $4 billion

NLRB Proposes Rule to Expand Standard for Determining Joint Employer Status

The National Labor Relations Board (NLRB) recently published a proposed rule to expand the standard for determining joint employer status under the National Labor Relations Act (NLRA). The Board is proposing to expand the definition of joint-employer status to include those that have indirect and reserved forms of control over workers, and “share or codetermine those matters governing at least one of the employees’ essential terms and conditions of employment.”

This proposed rule rescinds a 2020 final rule from the Trump Administration which set the definition of joint employer as an employer that exercises substantial direct and immediate control over the essential terms and conditions of employment.  BSCAI is reviewing the proposed rule and will keep members updated on the latest developments.

Update on Federal Contractor COVID-19 Vaccine Mandate

The U.S. Court of Appeals for the Eleventh Circuit recently upheld a lower court’s injunction of President Biden’s executive order requiring employees working on federal government contracts to be vaccinated for COVID-19, but narrowed the scope of the injunction from applying nationwide to now applying only to those plaintiffs in the case (seven states along with members of the Associated Builders and Contractors). Prior to the ruling, the Biden Administration was blocked from enforcing their federal contractor vaccine mandate nationwide.

Despite the narrowed scope of the nationwide injunction, the Biden Administration announced they will maintain the status quo and not enforce the federal contractor vaccine mandate in any capacity at this time. BSCAI will keep members updated should anything change with the status of the federal contractor vaccine mandate.

Biden Administration Issues Rule to Preserve DACA

The Biden Administration recently issued a final rule that will preserve and fortify the Deferred Action for Childhood Arrivals (DACA) policy for certain eligible noncitizens who arrived in the United States as children, deferring their removal and allowing them an opportunity to access a renewable, two-year work permit.  The rule continues the DACA policy as announced in the 2012 Napolitano Memorandum and is based on longstanding USCIS practice. The rule:

• Maintains the existing threshold criteria for DACA;
• Retains the existing process for DACA requestors to seek work authorization; and
• Affirms the longstanding policy that DACA is not a form of lawful status but that DACA recipients, like other deferred action recipients, are considered “lawfully present” for certain purposes.

The final rule is effective Monday, October 31, 2022. However, while a July 16, 2021, injunction from the U.S. District Court for the Southern District of Texas remains in effect, DHS is prohibited from granting initial DACA requests and related employment authorization under the final rule. Because that injunction has been partially stayed, DHS presently may grant DACA renewal requests under the final rule.

DOL Launches Online Tool to Improve Federal Contract Reporting

The U.S. Department of Labor (DOL) recently launched an online portal to help contracting officers, contractors and subcontractors to provide required notices of federal construction contracts and subcontract awards.

Executive Order 11246, a legal authority enforced by the department’s Office of Federal Contract Compliance Programs, requires contracting officers and contractors to submit a notice to OFCCP within 10 working days of the award of a federal or federally assisted construction contract or subcontract that exceeds $10,000.

According to DOL, the Notification of Construction Contract Award Portal provides users with a more efficient and secure way to submit required information about contract awards, including the contract’s effective date.

The portal will be the primary source for entering, tracking and submitting contract award notifications for OFCCP review. The site is designed to reduce or eliminate the need to submit contract award notifications by mail or email. Access the portal and learn more.

DOL Proposes Revision to Form LM-10 on Federal Contractor Status

The U.S. Department of Labor recently announced the publication of a proposed revision to the department’s Office of Labor-Management Standards’ Form LM-10. The proposed revision would require certain employers who are already required to file Form LM-10s to report their status as a federal contractor or subcontractor.

Certain employers must file a Form LM-10 to report, among other areas, agreements with consultants – and other payments and expenditures – made to persuade employees concerning their organizing and collective bargaining rights or to surveil the activities of employees and unions involved in a labor dispute with such employers. 

The proposed revision would amend the forms to include a box for certain employers who engage in reportable persuader or surveillance transactions or agreements to indicate if they are a federal contractor or subcontractor. An employer under a federal contract or subcontract would then be required to provide their GSA Unique Entity Identifier, if any, and provide information on the federal agencies for which they provide services.