Recent Developments in Federal Labor and Employment Law

In a continuing effort to keep readers informed about recent developments in labor and employment law, concrete contractors should consider the following.

OSHA issues interim enforcement guidance for Silica in Construction rule.  The rule became enforceable on September 23 but OSHA announced a 30 day grace period for construction employers making a good-faith effort to comply with the rule. That grace period has now expired, and with the publication of Interim Enforcement Guidance on October 19, construction employers can at least get some idea of how OSHA intends to enforce the rule.

The first question will be whether the employer is following Table 1 in the Silica in Construction Standard. The Interim Enforcement Guidance includes a detailed flowchart to evaluate compliance with Table 1. Enforcement picks up dramatically if the employer is not complying with Table 1 and will likely include document requests for exposure assessment records. Again, a detailed flowchart is included in the Interim Enforcement Guidance. OSHA’s compliance officers are directed to presume that dry sweeping and dry brushing are unacceptable unless the employer can show that alternative methods are not possible.

Because all construction employers with the silica exposure must have a written exposure control plan, you can expect compliance officer to request a copy and interview the competent person named in your control plan. You should also expect the compliance officer to request medical surveillance records and your hazard communication program and training records.

In other OSHA developments, contractors should note that the Electronic Recordkeeping Rule is in effect. This rule requires employers to submit injury and illness reports through a publicly accessible website. Perhaps more important, employers must adopt a reasonable process for reporting injuries that is non-retaliatory.  The rule specifically states that the employer should not include mandatory post-accident drug testing as part of its reporting procedure.

In addition to recent penalty increases, OSHA is strongly promoting its Temporary Worker Initiative which urges employers to provide more training to temporary staff. Additionally, OSHA has a new workplace violence directive which, under certain circumstances, deems a workplace violence incident to be a violation of the General Duty Clause. Similarly, OSHA’s Distracted Driver Initiative makes it a violation of the General Duty Clause that the employer has a culture that condones or promotes texting while driving on duty or in a company vehicle.

National Labor Relations Board

The Senate has confirmed two Republican nominees to serve on the National Labor Relations Board. This will create a 3-2 Republican majority on the Board. It is expected that the Trump Board will reverse many of the Obama Board’s pro-employee decisions, including decisions on class action waivers, joint employer status, temporary workers, so-called quickie elections, the definition of appropriate bargaining units, and perhaps others. We are already seeing a roll back of protected concerted activity.  In addition to the new Republican majority, President Trump’s nominee for the NLRB General Counsel was recently confirmed.

The Department of Labor

The Department of Labor recently filed a notice that it intends to appeal the summary judgment ruling against the “white-collar” overtime exemptions. It is likely that DOL will abandon the $913 a week figure set in the published regulations, and simply argue that it has the power to impose a reasonable salary test.

The Affordable Care Act

In light of Congress’s failure to “repeal and replace” the Affordable Care Act, President Trump is trying to accomplish what he can by Executive Order.  For example, Health And Human Services recently issued new regulations permitting employers to invoke religious or moral beliefs to avoid providing birth control or contraceptives as part of their insurance plan.

Gender Identity

In other developments, Attorney General Jeff Sessions formally reversed the government’s position on transgender workers. Sessions instructed US attorneys and the heads of all federal agencies that Title VII does not apply to discrimination claims based upon gender identity or transgender status.


On the immigration front, President Trump’s third travel ban has been blocked again by the District Court of Hawaii. This will result in another hearing before the Ninth Circuit Court of Appeals and possibly the US Supreme Court. President Trump has rescinded the Deferred Action against Childhood Arrivals (DACA) program established by former President Obama’s executive orders. This means that roughly 800,000 affected individuals will lose their employment authorizations unless Congress acts before March 5. Construction contractors will need to wait and see.

There are other federal changes as well as many state law changes that we simply do not have room to cover. Contractors are urged to stay in touch with competent counsel to monitor these changes.