The construction industry is fueled by change, which is the only constant in life and construction. Still, continuous change makes compliance with state and federal laws and regulations more difficult.

While contractors may thrive on the frantic pace, sometimes it is good to look back and ensure they have an understanding of, and are complying with, the newest regulations and laws.

Top 10 Stories Dominating Employment Law in Construction

1. Trio of Federal Joint Employment Rules Expected in December 2019
Joint employment took center stage during the November 20, 2019 release of the Fall Regulatory Agenda, as three separate federal agencies announced plans to move forward with revised joint employment rules in December. While the Department of Labor and the National Labor Relations Board had already released versions of their draft rules, the Equal Employment Opportunity Commission also announced that it would weigh in on the topic before the end of 2019. As of January 10, 2020, the EEOC had not done so.

2. NLRB Tightens Union Access to Employer Property

In a ruling that levels the labor relations playing field, the NLRB ruled that employers could rightfully eject outside union representatives soliciting petition signatures from a shared shopping center parking area. When read in conjunction with an earlier 2019 decision conferring greater rights to limit on-premises union activity by abolishing the “public space” exception, the NLRB has significantly restricted union access to private employer property.

3. DOL Releases Overtime Rule 2.0 for 2020

On September 24, 2019, the DOL announced the revised Overtime Rule, which will set the minimum salary threshold for the Fair Labor Standard Act’s white-collar exemptions at $684 per week, or $35,568 per year. The rule, which will expand overtime pay obligations to an estimated 1.3 million additional workers, became effective on January 1, 2020.

4. EEOC Reports That Sexual Harassment Charges Increase Once Again

Despite a 10% overall drop in the number of charges of employment discrimination, the EEOC revealed that sexual harassment charges filed with the agency jumped by 13.6% from the previous year. The 7,609 sexual harassment charges received in the EEOC’s 2018 fiscal year clearly demonstrate that the #MeToo movement is in no way slowing down. 

5. New OSHA Weighting System Could Lead to More Inspections

Effective October 1, 2019, OSHA put a new weighting system in place for workplace safety and health inspections for fiscal year 2020. The new OSHA Weighting System replaces the former time-centric program. The OWS system, which adds enforcement initiatives such as site-specific targeting to the weighting of an incident, is designed to better recognize that time is not the only factor to assess when considering the potential impact of an inspection.

6. NLRB Limits Application of “Micro-Unit” Strategy

In a blow to national union organization efforts, the NLRB clarified the test for determining whether “micro-units” of employees within a larger workforce can organize on their own. In reversing a Regional Director’s decision to allow a representation election with this smaller subset of employees, the NLRB clarified its traditional community-of-interest standard for evaluating the appropriateness of petition for bargaining units.

7. OSHA Delays Compliance Deadlines for Beryllium Exposure Rule

OSHA finalized their proposed rule on occupational exposure to beryllium and beryllium compounds in construction and delayed the compliance deadlines for nearly all provisions of the standards to September 30, 2020. OSHA’s final rule confirms that the exposure level—permissible exposure limit and the short-term exposure limit—remain in effect.

8. Supreme Court to Determine LGBT Workplace Bias Issues

The Supreme Court is set to determine whether Title VII’s ban against “sex” discrimination covers claims involving sexual orientation and gender identity. By the time the term ends in June 2020, employers will finally have a definitive answer regarding the contours of the federal primary civil rights law as it applies to members of the LGBT community.

9. NLRB Makes It Easier to Classify Workers as Independent Contractors

In a significant ruling which will benefit companies, the NLRB revised the test it uses for determining whether workers are employees or independent contractors by making it easier for entities to classify them as contractors. The January decision threw a roadblock into unionization efforts involving such workers, as federal law does not permit independent contractors to unionize or join forces with employees in organizing efforts.

10. NLRB Makes Significant Amendments to Union Election Rules

In December, 2019, the NLRB announced significant changes to its Union election rules, designed to address the most common complaints about the “quickie” election rules issued five years previously by the Obama Administration. The new rules, among other things state that elections should generally not be held sooner than 20 business days after the Region directs an election.

The NLRB also announced its intent to published a proposed “Election Protection Rule” that would amend the following regulations:

• blocking charge policy;
• voluntary recognition bar rule; and
• recognition rules in the construction industry.

While it is hard to imagine a year more packed with major legal news than 2019, contractors should anticipate changes in laws and regulations that directly impact the workplace in 2020 to continue.