Update 1/4/23 by TRI Lobbyist, Craig S. Brightup; photo by John Jensen
$1.7 Trillion Omnibus Bill Signed Into Law
On Dec. 29, President Biden signed an omnibus spending package for the remainder of FY23 that Congress was able to pass with all Democrats and 18 Republican Senators. At 4,000 pages, it contains a grab bag of unrelated legislative items and further balloons government spending by $1.7 trillion. Much of the omnibus provides budget increases to federal agencies promoting dubious programs and/or issuing as many anti-business regulations as possible.
H-2B Reforms in Omnibus Negotiations
Having a small group of congressional leaders decide what gets in an omnibus bill in a lame duck session instead of regular order is particularly vulnerable to bad policy. In this case, certain business groups that use the H-2B seasonal worker visa program decided to join with organized labor to block the construction industry from fully accessing H-2B workers in return for some “reforms” to the program. TRIA signed a letter that was sent to congressional leaders on Dec. 17, opposing this “sneak attack” language which ultimately didn’t make it into the omnibus.
NLRB Joint-Employer Rulemaking
The Biden National Labor Relations Board (NLRB) wants to change joint-employer status. For years, the standard for joint-employer status has been direct and immediate control over essential terms and conditions of employment. But the NLRB’s proposed rule states joint-employer status could be found if an employer simply possesses the authority to directly or indirectly control, or exercises the power to directly or indirectly control, one or more of the employees’ essential terms and conditions of employment. Business groups view this as so vague that almost any B2B activity could trigger joint-employer status. The comment period closed Dec. 7 and the Coalition for a Democratic Workplace (CDW) submitted comments signed by 69 employer organizations including the TRI Alliance and NRCA. Six bipartisan Senators also submitted comments concerning the proposed joint-employer rule and franchises, and their letter sends a signal to the NLRB for all business entities.
NLRB Adds Compensation to Remedies for Labor Violations
On Dec. 13, the NLRB augmented its enforcement remedies toolbox for unfair labor practices to make employers compensate workers for “all direct or foreseeable” harms that resulted from a labor law violation. On Dec. 29, the NLRB also received an additional $25 million for its budget from the omnibus package.
DOL Independent Contractor Rule
At the U.S. Dept. of Labor (DOL), new workforce regulations are coming with a proposed rule under the Fair Labor Standards Act by which employers determine if a worker is an employee or independent contractor. This will replace a 2021 rule that addressed inconsistent court rulings and revert to confusing criteria that often will find a worker is an employee. This will result in higher costs for businesses trying to discern the criteria and defaulting to employee status when it should be independent contractor. The comment period closed Dec. 13, and with independent contractors and subcontractors used widely in construction, AGC, ABC, and NRCA are oppose to the new rule.