Government Affairs

September Government Updates

OSHA’s Most Commonly Cited Standards

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 much from year to year. For fiscal year 2017 data, 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. General requirements for machinery and machine guarding (1910.212)
  9. Fall protection training requirements (1926.503)
  10. Electrical wiring methods, components and equipment for general industry (1910.305)

Of particular note for the building services industry, hazard communications was the second most cited standard. Another citation with relevance for building service contractors is respiratory protection.

For the same time frame, the top 10 cited OSHA standards for inspection of the building services sector were:

  1. Hazard Communications (1910.1200)
  2. General Requirements for Personal Protective Equipment (1910.132)
  3. Vehicle-mounted Elevating and Rotating Work Platforms (1910.67)
  4. OSH Act General Duty (5A0001)
  5. Respiratory Protection (1910.134)
  6. Control of hazardous energy (lockout/tagout) (1910.147)
  7. Reporting Fatalities, Injury, and Illnesses (1904.39)
  8. Safety Requirements for Scaffolding (1910.28)
  9. Eye and Face Protection (1910.133)
  10. Bloodborne Pathogens (1910.1030)

Note that several of the violations relate to wearing proper protective equipment and reporting injuries. It is incumbent on safety personnel to stay on top of any issues to avoid fines and inspections from OSHA.

IRS Provides Guidance on Deduction for Pass-Through Businesses

The Internal Revenue Service has issued proposed regulations allowing pass-through businesses such as sole proprietorships, partnerships, trusts and S corporations, to deduct 20 percent of their qualified business income. Public comments on the proposal are due by October 1. A public hearing on the proposal will be held on October 16 in Washington, D.C.

The new deduction -- referred to as the Section 199A deduction or the deduction for qualified business income -- was created by the Tax Cuts and Jobs Act. The deduction is available for tax years beginning after Dec. 31, 2017. Eligible taxpayers can claim it for the first time on the 2018 federal income tax return they file next year.

The deduction is generally available to eligible taxpayers whose 2018 taxable incomes fall below $315,000 for joint returns and $157,500 for other taxpayers. The 20 percent deduction is equal to the lesser of 20 percent of qualified business income plus 20 percent of their qualified real estate investment trust dividends and qualified publicly traded partnership income or 20 percent of taxable income minus net capital gains.

Deductions for taxpayers above the $157,500/$315,000 taxable income thresholds may be limited. Those limitations are fully described in the proposed regulations. Qualified business income includes domestic income from a trade or business. Employee wages, capital gain, interest and dividend income are excluded.

Deadline Approaches for Congress to Reach Budget Deal

Time is running out for the House of Representatives and Senate to fund the federal government and avoid a shutdown. Funding for the federal government is set to expire at the end of the month. Although the Senate has already approved nine of 12 mandatory spending bills, which is great progress compared to recent years, it is likely that Congress will approve a short-term funding agreement and resolve final funding levels for Fiscal Year 2019 (that beings October 1) after the midterm elections in November.

There is speculation that President Donald Trump may attempt to shut down the government unless there is funding for construction of a border wall along the U.S.–Mexico border. However, House Republican Leadership would like to avoid that fight as it is concerned that a government shutdown could hurt vulnerable Republican incumbents in the upcoming midterm elections.

DOL Hosts Listening Sessions on Overtime Pay Eligibility

The Wage and Hour Division of the U.S. Department of Labor (DOL) is holding public listening sessions across the country to gather views on the Part 541 white collar exemption regulations, often referred to as the “Overtime Rule.” Issued under the Fair Labor Standards Act (FLSA), these regulations implement exemptions from overtime pay requirements for executive, administrative, professional, and certain other employees.

DOL plans to update the Overtime Rule and is interested in hearing the views and ideas of participants on possible revisions to the regulations. In July 2017, DOL issued a Request for Information (RFI) as a precursor to a new rulemaking.

Last year, a federal court permanently invalidated changes made to the Overtime Rule under the Obama Administration. This follows a November 22, 2016, preliminary injunction by a federal court barring enforcement. The final rule was scheduled to take effect on December 1, 2016.  As part of the final rule, the salary level under which employees qualify for overtime pay would have increased from $455 per week ($23,360 annually) to an estimated $913 per week ($47,476 annually). In addition, the rule included automatic updates to the threshold every three years without seeking public comment.

Mark Pearce Nominated to Third NLRB Term

President Trump nominated Mark Pearce to serve another term on the National Labor Relations Board (NLRB). The Board currently sits at four members following the expiration of Pearce’s term on August 27.

President Barack Obama originally appointed Pearce to the Board for a partial term in 2010. Pearce was then appointed to a full five-year term in 2013.

Typically, the five-member Board is composed of three members from the same political party as the president. Given that there are currently three Republicans and One Democrat on the Board, Pearce is expected to be confirmed despite being a former union attorney. The NLRB is revisiting a number of controversial topics, including joint employer liability.

Senate Swears in Successor for Sen. John McCain

John Kyl was sworn in on September 5 to fill the unexpired term of John McCain, who died on August 25 after suffering from brain cancer. This is the second go around for Kyl in the Senate; the 76 year-old previously represented Arizona in the Senate from 1995 to 2013.

Sen. Kyl helps Republicans with their narrow Senate majority, which currently stands at 51 Republicans and 49 Democrats. Before being reappointed to the Senate by Arizona Governor Doug Ducey (R), Kyl worked as a lobbyist and helped with the Supreme Court nomination of Brett Kavanaugh this summer.