IHMM Today May 24, 2022

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Beltway Buzz – Ogletree & Deakins

DOL Appeals Reinstatement of Independent Contractor Rule. Late last week, the administration filed its notice of appeal of the recent decision by the U.S. District Court for the Eastern District of Texas to reinstate the Trump-era independent contractor rule. Even though the rule remains in place, independent contracting arrangements will continue to be an enforcement focus of the U.S. Department of Labor (DOL), particularly in the hospitality, healthcare, janitorial, and construction industries. Also, the National Labor Relations Board (NLRB) is in the process of making changes to its test for independent contractor status. This all means that the independent contractor landscape will continue to remain uncertain for some time.

Wage and Hour Bill on the Move. Last week, the Buzz discussed the Wage Theft Prevention and Wage Recovery Act (H.R. 7701, S. 4174) and the dramatic changes it would make to the Fair Labor Standards Act. This week, the U.S. House Committee on Education and Labor voted to approve the bill and advance it to the floor of the U.S. House of Representatives. At this time, there is no word on when—or if—the full House will vote on the bill. A companion bill in the Senate has twenty-eight cosponsors (twenty-seven Democrats and Senator Bernie Sanders [I-VT], who caucuses with the Democrats).

Bill Makes Changes to ERISA Claims Process. The same House committee also advanced the Mental Health Matters Act (H.R. 7780) this week. Tucked into the bill is the Employee and Retiree Access to Justice Act of 2022, which would significantly impact claims made pursuant to the Employee Retirement Income Security Act (ERISA). Specifically, the bill would prohibit agreements that provide for predispute arbitration of such claims and also limit post-dispute arbitration unless certain conditions are satisfied. The bill would also ban discretionary clauses in ERISA plans, meaning that courts would use the de novo standard of review when adjudicating benefit denial claims (potentially leading to expensive and drawn-out claim processes and patchwork interpretations). The bill now heads to the House floor.

Taxing Employer Speech. With the Protecting the Right to Organize (PRO) Act stalled in the U.S. Congress, Democratic and Independent members of Congress are turning to the tax code to benefit big labor. The recently introduced No Tax Breaks for Union Busting Act (S. 4192) would prohibit employers from deducting business expenses that result in a complaint issued by the NLRB or that relate to so-called “captive audience meetings,” among other activities. The bill also would establish an Internal Revenue Service reporting requirement for “[a]ny employer who attempts to influence the employer’s employees with respect to labor organizations or labor organization activities….” Like the failed “persuader” rule, the bill is an attempt to discourage employers from speaking to employees about the pros and cons of unionization.

Davis-Bacon Reg. Proposal Advances. This week, the DOL’s Wage and Hour Division (WHD) closed the public comment docket on its proposed changes to its Davis-Bacon Act (DBA) regulations. A number of the comments filed by national business organizations and trade associations focused on the unprecedented nature of the rule—that it would overturn settled decisional law and expand the scope of the DBA’s coverage to new types of construction-related activity and new industries—while failing to adequately address the DOL’s complicated wage determination process. The administration is likely hoping to issue the final regulations before the end of the calendar year.

Labor Secretary Seeks More Funding. Secretary of Labor Martin Walsh made the short trip to Capitol Hill this week to testify before the U.S. House Committee on Appropriations’ Subcommittee on Labor, Health and Human Services, Education, and Related Agencies on the administration’s proposed fiscal year (FY) 2023 DOL budget. Secretary Walsh’s written testimony provides stakeholders with a glimpse of DOL’s current priorities:

• The administration is requesting more than $700 million (about $89 million more than current funding) “to help OSHA [the Occupational Safety and Health Administration] rebuild its rulemaking and enforcement capacity, expand its whistleblower protection program, and increase its outreach and compliance assistance. This investment will support OSHA’s efforts to double the number of inspectors by the end of President Biden’s first term.”
• “The FY 2023 Budget increases funding to the WHD by more than $56 million over the FY 2022 enacted level. This funding increase will enable WHD to hire, train, and equip enforcement staff to better protect essential workers by safeguarding their pay and recovering back wages, with particular emphasis on the workers most vulnerable to wage violations and exploitive labor conditions.”
• For the Office of Federal Contract Compliance Programs (OFCCP), the administration is requesting about $39 million dollars above current funding levels “to fully enforce employment antidiscrimination requirements to ensure federal contracting consistent with America’s promise to all workers in America. Included in this increase is $3.2 million to enable OFCCP to meet the increased need for its services as a result of the BIL [Bipartisan Infrastructure Law]. This funding will allow OFCCP to build its capacity to remove systemic barriers that workers in underrepresented communities face to accessing good jobs in construction and other growth industries that the BIL will bolster.”

Funding for the federal government runs through September 2022, so expect these funding discussions to heat up towards the end of summer.

Notice of Public Meetings in 2022 for International Standards on the Transport of Dangerous Goods

The PHMSA Office of Hazardous Material Safety (OHMS) will host public meetings in advance of three international meetings to allow the public to give input on current proposals being considered by the United Nations Sub-Committee of Experts on the Transport of Dangerous Goods (UNSCOE TDG) and the International Civil Aviation Organization’s (ICAO) Dangerous Goods Panel (DGP). These international meetings include:

1. The 60th session of the UNSCOE TDG, scheduled for June 27 to July 6, 2022, in Geneva, Switzerland.
2. The ICAO DGP Working Group 22, tentatively scheduled for November 21–25, in Montreal, Canada.
3. The 61st session of the UNSCOE TDG, scheduled for November 28 to December 6, 2022, in Geneva, Switzerland.

Each of these public meetings will be held approximately two weeks before the corresponding international meeting. Specific information for each meeting, including date, time, conference call-in number, and details for advance registration will be posted when available on the PHMSA website under “Upcoming Events.” These meetings will be virtual, with concurrent in-person sessions possible, pending public health guidelines.

The Federal Register announcement can be found here: https://www.govinfo.gov/content/pkg/FR-2022-03-03/pdf/2022-04435.pdf utm_source=federalregister.gov&utm_medium=email&utm_campaign=subscription+mailing+list

FEDERAL CREDENTIAL RECOGNITION – CALL TO ACTION – Freedom to Invest in Tomorrow’s Workforce Act

CALL TO ACTION – Representative Spanberger of Virginia’s 7th Congressional District has drafted legislation entitled,  H.R. 2171, “Freedom To Invest in Tomorrow’s Workforce Act.” This legislation expands the provisions of existing law with respect to the allowable uses of Section 529 education tuition accounts to include most expenses paid by the holders of private professional certifications. We need you to contact your House and Senate members to ask them to co-sponsor this legislation.

CLICK HERE TO PARTICIPATE

You can support this effort with your voice and message. Go here>  https://ihmm.org/45-in-5-task-force/  and fill out your contact information where provided and help to pass H.R. 2171/S. 905.

IHMM/HMS Coronavirus Resources

A Collaborative Culture

There are 709 different conversations going on in the IHMM/HMS Collaboration platform this week.

A collaborative culture is important for every business but is especially important for our hazardous materials, dangerous goods, environment, health, and safety communities of practice. Do you have a problem you need to solve and want the opinions of your colleagues? This is where we come together to help each other.

IHMM credentialed professionals are at the top 1% of their professions and their reach is global. We are at the forefront of environmental protection, health, and safety and this is where collaborating with the best people in their fields, always willing to help one another, lessens the stress of our jobs, and where we strive as a team to make a difference of which we are proud.

We opened COLLABORATION to enable thousands of certificants and supporters to collaborate together. You can collaborate here.

Access to COLLABORATION is through the same username/password you use to access your MYIHMM account. Having a problem? Contact Jimmy Nguyen at [email protected]

Columbia Southern University

The Hazardous Materials Society [HMS] is a partner of Columbia Southern University. Columbia Southern University is an online university based in Orange Beach, Alabama, that strives to change and improve lives through higher education by enabling students to maximize their professional and personal potential.

A subsidiary of Columbia Southern Education Group, CSU offers online degree programs at the associate, bachelor, master, doctorate or certificate levels in a multitude of areas such as occupational safety and health, fire administration, criminal justice, business administration, human resource management, health care administration and more. CSU also features undergraduate and graduate certificate programs to provide focused training in specialized areas for adult learners.

Click on the CSU graphic at left and learn more about the professional development and degree program opportunities at CSU.

IHMM CONFERENCES FOR 2022

IHMM will attend and support a number of conferences and trade shows throughout 2022, virtually as well as in-person as COVID issues allow. Below are some of the conferences IHMM will support in 2022.

Are there conferences you believe IHMM should attend that do not appear here? If so, let us know by sending an email to [email protected]

VENDOR ALERT

IHMM had a record number of applications in 2021 – 704.  In 2021 IHMM delivered the largest number of examinations since 2016 – 477.  IHMM has 975 students in the pipeline moving through applications and examinations. IHMM has 358 students taking examinations right now. IHMM has another 546 students headed to take examinations.

Are you seeing this business as a vendor of education and training services?

Contact IHMM Executive Director Eugene A. Guilford, Jr., CAE, at [email protected]

HMS EVENTS CALENDAR