Call to Action Items
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Legislative Updates
FCAI, FCA International, and IMSCA keep you informed on what is happening in Washington, D.C. and Springfield that will affect finishing contractors. For the latest news, please see below.
NOVEMBER 2024
Pay Transparency in Illinois begins January 1
By Kevin Kleine, Julie Proscia from Amundsen Davis, LLC
Pay transparency laws are regulations that require employers to disclose salary information and are designed to address issues like pay gaps, wage disparities, and overall wage inequality. Laws like this are becoming more common, particularly in the US and parts of Europe.
Illinois’ pay transparency law (HB 3129) take effect on January 1, 2025.
What Information do Employers Disclose?
Beginning on January 1, Illinois employers with 15 or more employees will be required to post the pay scale and benefits for a position on all job postings or disclose this information when requested by an applicant.
HB3129 defines pay scale and benefits as the wage or salary (as well as range, if applicable) and a general description of benefits or other compensation – stock options, bonuses, or other incentives that the employer may offer in good faith. This includes all health and retirement benefits offered.
Illinois employers can comply with the requirements of HB3129 by providing a link to a public website that discloses pay scales and benefits for a particular position.
Which Positions Must Employers Disclose Pay Scale and Benefit Information?
HB3129 applies to essentially all job positions because it covers positions where an employee will only partially be performing work in Illinois. T even includes remote positions who work outside of Illinois but report to a worksite or supervisor located in the state.
Notice Requirements
HB3129 required employers to notify their current employees of all opportunities for promotion no later than 14 calendar days after the employer makes an external job posting for the promotional opportunity.
How to Manage Expectations
The following are some tips to manage an applicant’s expectations regarding a position’s pay range:
- First, and most importantly, carefully draft job advertisements and related communications. Clearly state on all job postings and in all communications regarding an available position or promotional opportunity that any disclosed pay range is based on neutral factors and criteria like required qualifications, experience, education, skills, training, certifications, etc.
- Second, include a disclaimer on all postings and all related communications that the employer reserved the right to offer the selected candidate an hourly rate or salary at an appropriate level to be set and determined by the employer that is commensurate with the applicant’s qualifications, experience, education, skill, training, certifications, etc.
Pay transparency laws are here to stay and will only become more common as additional states adopt the legislations. Begin this process now, so that your company will be compliant on January 1, 2025.
Worker Safety Rules in Danger After Trump Win
By Tre’Vaughn Howard. Bloomberg Construction Labor News. November 7, 2024
The first nationwide proposal to protect workers from high heat and a challenged rule on who can join safety inspectors will most likely be in jeopardy after Donald Trump reclaims the White House.
Legal scholars state that OSHA’s planned heat stress standards will likely be delayed and it’s final “walkaround rule” that allows OSHA inspectors to be accompanied by non-employee representatives may be withdrawn altogether.
Cary Coglianese, an administrative law professor at the University of Philadelphia, said of the ‘walkaround rule’ that we may see “under a Trump administration, even before the court rules, OSHA saying we agree that this rule is something we don’t want to have in place”. Another professor of law noted that it may be difficult for the Trump administration to withdraw the heat standard, but they may attempt to slow it down.
Heat Rule
First proposed in 2021, the heat-stress rule requires employers in a wide range of sectors to implement heat emergency response planning like providing workers drinking water or break areas for outdoor worksites. The rule will either be abandoned or delayed according to Lawrence Halprin, partner at Keller & Heckman, LLP. He stated that the options “are to develop and adopt a more employer-friendly rule with Congress under the suggestion that it will be subject to a Resolution of Disapproval”. The rule is on shaky ground and rushing it through before the incoming administration could prevent OSHA from issuing the standard much like what happened in 2001 with Clinton’s push for ergonomics standards.
Walkaround Rule
The OSHA Walkaround rule went into effect in May 2024 and while Coglianese says that Trump wasn’t too successful in removing existing rules in his first term, there is an expectation that there will be fewer new OSHA rules going forward. The US Chamber of Commerce, along with a coalition of business groups, have a pending case against the agency in Texas over this walkaround rule. Halprin expects an appeal by employers if OSHA were to prevail in court; but, if the rule is upheld in its current form, he expects the new administration to “propose to rescind or substantially modify the rule”.
Coglianese also expects that business advocates will seek to prolong the rule’s compliance dates, leading to a scenario where the Department of Labor reconsiders the regulation altogether.
Biden’s $15 Minimum Wage Mandate for Contractors Overturned
By Robert Iafolla. Bloomberg Construction Labor. Nov. 5 2024
The Federal Court of Appeals ruled that President Biden lacked the authority to impose a $15 minimum wage mandate for contractors.
The Ninth Circuit vacated the DOL rule implementing Biden’s Executive Order finding that it violated federal law governing agency rulemaking when it overlooked alternatives to the $15 minimum wage mandate. The ruling could limit future presidents’ latitude to set policies for federal contractors.
Attorneys have warned that successful challenges to presidential procurement power could open the door to lawsuits questioning the authority of the Labor Department’s Office of Federal Contract Compliance Programs – created through executive order. This agency enforces anti-discrimination and affirmative action obligations for federal contractors.
The Biden Administration’s contractor increase drew lawsuits with split decisions. The Tenth Circuit refused to stop the pay requirement while another suit in Texas blocked enforcement of the wage increase.
In the case decided by the Ninth Circuit, the court ruled that Biden did not have the power under the Procurement Act to set a minimum wage requirement for federal contractors. Judge Ryan Nelson wrote for the majority decision that the “Government’s preferred interpretation would wildly expand the President’s authority form other statutes that contain both the ‘carry out’ language and congressional statement of purpose”.
The majority decision turned aside the administration’s argument that the Department of Labor’s (DOL) rule implementing Biden’s order was not subject to review under the Administrative Procedure Act (APA). The majority wrote, “to hold as the Government urges would allow presidential administrations to issue agency regulations that evade the APA-mandated accountability by simply issuing an executive order first”. The court stated that agencies would then be allowed to implement regulations without involvement from the public or deliberation as required under the APA.
Finally, the majority wrote that the DOL failed to meet basic APA requirements by not considering any alternatives to the $15 minimum wage mandate, so the rule must be vacated.
Legal And Legislative Report October 2024
Week of 9-20-2024
Divisions on Funding Continue as Government Shutdown Looms
Congress has two weeks before the government shuts down without funding; negotiations have continued this week on a short-term funding package. Last week, Speaker Mike Johnson (R-LA) abruptly pulled his continuing resolution (CR) from a scheduled floor vote, conceding that it lacked sufficient support to pass. About a dozen Republicans have announced publicly that they will not vote for the measure, and estimates are that perhaps a dozen more will vote against it if it comes to the floor.
The Speaker has declined to pivot to a different strategy, instead tasking Majority Whip Tom Emmer (R-MN) to try to build support for the six-month funding measure that would also attach the SAVE Act, a bill that would require documentary proof of citizenship to register to vote in federal elections. Speaker Johnson can afford to lose only four Republican votes if his entire conference is present, perhaps a few more if some of the five moderate Democrats who previously voted for the SAVE Act decide to vote for it again. It continues to prove very difficult for Republican leadership to unite the fractious Republican conference on spending measures.
If opposition to the current CR remains entrenched, Johnson has limited options, all of which carry significant downsides. Several factions of the GOP would oppose a six-month CR that strips out the SAVE Act, including those who want to highlight voter fraud issues in advance of the election and defense hawks who insist that the military cannot continue at current funding levels for that long, and it would not attract required levels of Democratic support to overcome that vote deficit. A shorter-term CR that includes the SAVE Act would not garner sufficient Republican votes to pass on a party-line vote. Even if it could pass the House with Democratic support, it would be dead on arrival in the Senate. This could result in a politically risky government shutdown or force the House GOP to quickly backtrack from that negotiating position. A short-term CR without the SAVE Act appears to be the only viable option. However, this approach will likely lead to a Lame Duck negotiation of a bipartisan omnibus spending package, which could anger conservatives just as the conference meets to select leadership for the next Congress. Reports indicate that the House Republican leadership team is divided on strategy, with members positioning themselves to cast blame for the current situation. Whether or not House Republicans retain their majority in the next Congress, Speaker Johnson may struggle to retain his speakership.
U.S. Department of Labor’s Severe Injury Report Dashboard
The U.S. Department of Labor (DOL) launched its online Severe Injury Report dashboard in September. The tool is designed for users to search the DOL’s Severe Injury Report database and view trends related to workplace injuries. OSHA defines a severe injury as “an amputation, in-patient hospitalization, or loss of an eye.” The dashboard covers injury data from 2015 to 2023. The data can be broken down by NAICS code, establishment name, state, year, body part, source, nature, and events/exposure and will be regularly updated. The database does not include data from states with their own state workplace safety and health plans.
This is the first time these reports will be made publicly available, and it raises some concerns. For example, the database provides severe injury data without providing much context, enabling others to create a false or misleading picture of an employer’s workplace safety practices and record. The information can also be used by litigants, insurance companies, regulators and others for any number of reasons. That said, the dashboard will be a useful tool for companies and associations when they seek to use injury data in comments responding to OSHA rulemakings. For example, OSHA recently issued its proposed Heat Injury and Illness standard.
By using this tool, one can find that in 2023, many severe injuries in the “couriers and express delivery services” sector were due to “exposure to environmental heat.” Having access to data on the number, origin and details of industry injuries due to heat exposure could be a valuable inclusion.
Older Reports
Recently approved requirements that may apply to you and your business
IDOL Equal Pay Certificate
Per HB 4604 (P.A. 102-0705) of the 102nd General Assembly, private businesses with 100 or more employees are required to submit an application to obtain an Equal Pay Registration Certificate by providing certain pay, demographic and other data to the IL Department of Labor by March 24, 2024 and recertify every two years after the first submission. The law also requires such employers to submit certain information with their application, including: a statement certifying that the business is in compliance with the Equal Pay Act of 2003 and other State and Federal laws related to equal pay. For the purposes of this requirement, “business” is defined as “any private employer who has 100 or more employees in the State of Illinois and is required to file an Annual Employer Information Report EEO-1 with the Equal Employment Opportunity Commission, but does not include the State of Illinois or any political subdivision, municipal corporation, or other governmental unit or agency. Please visit IDOL’s Equal Pay Registration Certificate page to access the online portal that businesses must use to submit their contact information and required data to IDOL, a training guide for use of the portal, a compliance statement template, and other certification information and resources. In addition, you are encouraged to review the Frequently Asked Questions section of the IDOL webpage.
Paid Leave for All Workers Act
On January 10, 2023, the Illinois General Assembly approved SB 208 (P.A. 102-1143), the “Paid Leave for All Workers Act”. This new law requires private employers to provide earned paid leave to employees to be used for any reason. The Paid Leave for All Workers Act takes effect on January 1, 2024 and sets forth a minimum of 40 hours (or 5 days) paid leave for all employees (regardless of size of employer).
The new law includes an exemption for signatory employers of collective bargaining agreements in the construction industry and states the following: “In no event shall this Act apply to any employee working in the construction industry who is covered by a bona fide collective bargaining agreement…”. In addition, the Act includes a very specific definition of “construction industry”: “Construction industry” means any constructing, altering, reconstructing, repairing, rehabilitating, refinishing, refurbishing, remodeling, remediating, renovating, custom fabricating, maintenance, landscaping, improving, wrecking, painting, decorating, demolishing, or adding to or subtracting from any building, structure, highway, roadway, street, bridge, alley, sewer, ditch, sewage disposal plant, waterworks, parking facility, railroad, excavation or other structure, project, development, real property, or improvement, or to do any part thereof, whether or not the performance of the work herein described involves the addition to or fabrication into, any structure, project, development, real property, or improvement herein described of any material or article of merchandise. “Construction industry” also includes moving construction related materials on the job site or to or from the job site, snow plowing, snow removal, and refuse collection.
However, while the law exempts signatory contractors in the construction industry from these new requirements, the new law will apply to a contractor’s administrative and other support staff who are not covered by a collective bargaining agreement. Please visit IDOL’s Paid Leave for All Workers Act page to access more information on this new law. The webpage also includes a Frequently Asked Questions section.
Annual Sexual Harassment Prevention Training
Public Act 101-0221, Illinois employers are required to train employees on sexual harassment prevention on an annual basis. The training must be completed by December 31, 2023. This requirement applies to all employers with employees working in this State. Please visit the IL Department of Human Rights Sexual Harassment Prevention Training Program page to access more information, including Frequently Asked Questions.
