Problem Regulations

Date: January 24, 2017

Related Content: Issues Labor Regulations

Environmental Protection Agency

Definition of Waters of the U.S. Under the Clean Water Act — Final Rule Issued in May 2015
The EPA and the U.S. Army Corps of Engineers expanded the definition of U.S. waters that are “navigable” – in some cases, to even small depressions or farm ponds that do not impair the flow of rivers. Despite state jurisdiction, this rule will impose federal mandates for water quality levels in these local waters or land uses. What’s most troublesome is that the EPA issued the rule without doing required Regulatory Flexibility Act processes. EPA claims that the rule will have no significant impact on small businesses even though the rule will clearly restrict the ability of small businesses to expand or develop their land and decrease land value. Read NFIB’s Comments on WOTUS.

Greenhouse Gas Emissions; New and Existing Power Plants — Final Rules Issued in August 2015
EPA has finalized new rules that impose on states harsh carbon limits for electricity production that will force them to close down the coal-powered generators that now provide the vast bulk of America’s power. EPA will require the states to increase the percentage of power they generate from alternative sources, like wind and solar, which are far weaker and more expensive. NFIB is concerned about the rules’ impact on affordable electricity, one of the most important costs a small business owner faces. Read NFIB’s Comments on Greenhouse Gas Emissions.

Department of Labor

Wage and Hour Division – Expansion of Overtime Eligibility – Final Rule Issued in May 2016
President Obama directed the DOL to revise regulations relating to overtime eligibility, specifically to find ways to expand time-and-a-half pay to more workers. Unfortunately, this will come at the expense of small business owners. Like most government mandates on business, increasing the number of workers eligible for overtime will have a deep and disproportionate impact on the small business sector. The final rule more than doubles the current salary threshold, to $47,476. While touted as a way to give more wages to workers, in reality business owners will likely limit workers to 40 hours a week and scale back managerial staff, so workers will not realize higher pay. Read NFIB’s Comments on the New Overtime Rule.

OLMS – Interpretation of the “Advice Exemption” — Final Rule Issued in March 2016
Also known as the “persuader rule,” the DOL’s Office of Labor-Management Standards (OLMS) issued a rule that would greatly inhibit the ability of small businesses to rely on labor experts. For nearly 50 years the DOL has recognized that legal advice is excluded from reporting under federal labor law. The new rule would force lawyers and law firms that counsel a small business on most labor relations matters, and whether the business has a union or not, to disclose not only their work with that client, but also all fees and arrangements for all clients for all labor-relations services. The net result could well be that many lawyers will no longer take on clients seeking labor-relations counsel. Read NFIB’s Comments on the Persuader Rule.

OSHA – Crystalline Silica — Final Rule Issued in March 2016
OSHA halved the permissible exposure limit for silica, the second most common mineral in the earth’s crust. The rule will have serious impact on industries like construction and manufacturing. In addition to lowering the limit, OSHA mandated other expensive requirements on small businesses like engineering controls, medical monitoring of employees, and a vast recordkeeping burden. This is despite the fact that OSHA is unable to ensure compliance with the previous PEL for about 30 percent of businesses nationwide. NFIB believes if OSHA ensured compliance, it could largely solve the workplace silica issue. Read NFIB’s Comments on Crystalline Silica.

OSHA – Improve Tracking of Workplace Injuries and Illnesses — Final Rule Issued in May 2016
OSHA changed its reporting system for occupational injuries and illnesses to require employers to submit data from its injury logs electronically to the agency. OSHA will then take the data and create a database – with establishment-specific information – that is available to the public. Our concerns range from the public misinterpreting the safety of businesses to unions using the information to target certain businesses for unionization. Read NFIB’s Comments.

EBSA – “Definition of the Term “Fiduciary”; Conflict of Interest Rule — Final Rule Issued in April 2016
The Employee Benefits Security Administration broadened the definition of what types of duties performed by financial advisors are fiduciary in nature – and thus subject to strict prohibitions. This includes offering a business a curated list of potential investments for a company’s retirement plan. NFIB is concerned the rule will prevent access to retirement plans to many small businesses and their employees. According to NFIB’s Research Foundation, 38 percent of small businesses offer retirement benefits to employees – up from 27 percent a decade ago. Read NFIB’s Comments on the 2015 Proposed Fiduciary Duty Rule. Read NFIB’s Comments on the 2017 Proposed Delay of the Applicability Date of the Fiduciary Duty Rule. Read NFIB’s Comments to the DOL for its review of the Fiduciary Duty Rule under the President’s Memorandum of February 3, 2017.

Wage and Hour Division – Establishing Paid Sick Leave for Federal Contractors – Final Rule Issued in September 2016
The rule requires federal contractors to provide seven days of paid sick leave per day. For covered small businesses that do not have a paid sick leave program, they will have to implement one and figure out how they will pay for it. For covered small businesses that already have a paid leave program, they will have to reconfigure the program to meet the highly prescriptive requirements of the proposed rule. Read NFIB’s Comments on Paid Sick Leave for Federal Contractors.

EBSA – Form 5500 Revisions – Proposed Rule Published in July 2016
As a result of Obamacare, the DOL – in conjunction with the IRS – proposed to expand this benefits-reporting form to small businesses, which have traditionally been exempt. The revision would increase the number of small health plans reporting from 6,200 under the current structure to 2,158,000, according to the Agencies’ estimates. This new paperwork burden would increase the cost to the economy 55 fold under the proposal. Read NFIB’s Comments on Form 5500.

Other Agencies

NLRB – Representation: Case Procedures — Final Rule Issued in December 2014
Commonly referred to as its “quickie elections rule,” the National Labor Relations Board has finalized a regulation that would streamline the union-election process. The Board’s goal is to reduce the median length of a union election substantially from the previous 35 days. NFIB believes that an employee’s informed choice will be compromised because the shortened timeframe means owners will have to scramble to obtain legal counsel and will have little time to talk to their employees. This shortened timeframe would hit small businesses particularly hard, since small employers usually lack labor-relations expertise and in-house legal departments. Read NFIB’s Comments on Case Procedures.

FMCSA/NHTSA – Speed Limiting Devices — Proposed Rule Published in September 2016
In a joint proposal, the Federal Motor Carrier Safety Administration and the National Highway Traffic Safety Administration have proposed requiring newly-manufactured large trucks to have a preset electronic speed limit. The agencies are considering a 60, 65, or 68 miles per hour limit. NFIB filed comments in October opposing the proposal, because it would set a speed limit for heavy trucks below the limit established by 34 states. Read NFIB’s Comments on Speed Limiting Devices.

IRS – Estate, Gift, aInd Generation-Skipping Transfer Taxes — Proposed Rule Published in August 2016
The Internal Revenue Service proposed to eliminate or greatly reduce the discounts for lack of control and lack of marketability for “family related entities” in many or potentially all circumstances, resulting in the creation of artificial value and corresponding artificially inflated tax burden. The proposal arbitrarily targets family-owned businesses, making it more difficult for small family businesses to compete, grow and thrive into future generations. Read NFIB’s Comments on the Estate Tax.

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