News

Legislative Update:

Register Today: LBMDA's 2023 Spring Meeting and Legislative Conference

• NLBMDA’s 2023 Spring Meeting and Legislative Conference will be held at the Hyatt Regency on Capitol Hill in Washington, D.C. from March 28-30, 2023.
• This premier event is an incredible opportunity to meet with leaders in DC and highlight the profile our industry with the new 118th Congress.
• The midterm elections in November reset the political structure in Washington and this is a key time to build relationships with new lawmakers and congressional leadership that is essential to advancing NLBMDA’s advocacy and legislative agenda. By turning out in force, we send a unified message that influences decision makers on Capitol Hill and reminds them about the importance of our industry and the impact that we have throughout the country.
• This conference includes many opportunities to learn about key issues affecting the lumber and building material industry from Washington policy experts and political commentators, featuring everything from main stage keynote presentations to policy discussions and networking sessions.
• The event will culminate with a day for you to conduct in-person meetings with your elected officials in Congress, making your voice heard on Capitol Hill.
• NLBMDA's Legislative Conference is the premier policy-making event, comprised of advocacy and education, including hearing from your federal legislators and an opportunity to make your voices heard in Congress.

NLBMDA Legislative Priorities Call

• With NLBMDA’s 2023 Spring Meeting & Legislative Conference approaching at the end of March, NLBMDA has a call to review and prioritize our top legislative issues for meetings on Capitol Hill.
• The call will be held on Friday, February 10 at 12:30pm CT / 1:30pm ET
• Click here for the zoom link to participate.

 
NLBMDA Releases 2023 National Policy Agenda

• The National Lumber and Building Material Dealers Association (NLBMDA) released today the 2023 National Policy Agenda, a comprehensive advocacy agenda for 2023, which outlines important policy priorities for the lumber and building material industry that will boost the housing and construction industry and support continued job creation across the U.S. economy.
• “NLBMDA members are essential to the national supply chain for building and residential construction,” said Jonathan Paine, President & CEO of NLBMDA. “Our policy agenda highlights areas for Congress and the White House to collaborate and implement meaningful policy that will allow small businesses to thrive while strengthening the U.S. economy with new jobs and affordable housing options for Americans in every part of the country.”
• To access the 2023 National Policy Agenda, click here.

 
NLBMDA Post-Midterm Elections Webinar

• In December, NLBMDA held a special members-only post-election webinar that examined the new political dynamics and legislative landscape in Washington as both parties turn their focus towards winning the White House in 2024. The 2022 midterm elections shifted the balance of power in Washington as Republicans won the House while Democrats held the Senate. In this post-election webinar, Director of Government Affairs Jacob Carter provides an update on key political issues heading into the 118th Congress, offers insights into the remaining agenda on Capitol Hill for 2022, and gives an outlook on the 2024 Presidential Election.

• Click here to access the recording.

 
NLBMDA Lumber Talks Podcast

• In December, NLBMDA released the newest episode of the Lumber Talks Podcast. In this episode, Senior Membership and Operations Associate Allison Ward is joined by Jacob Carter, NLBMDA’s Director of Government Affairs for a Washington Update Briefing to walk through the results of the 2022 Midterm Elections and the outcomes of congressional balances of power. Jacob is joined by a special guest, Josh Brandwein, a thought leader in the political sphere and the Director of Government Affairs for several other associations.
• Click here to listen now.

 
Update on Congress:

• On January 3, the new 118th Congress came into session and kicked-off an historic week of floor elections for Speaker of the U.S. House of Representatives. After 15 rounds of voting spread across four days of negotiations, Rep. Kevin McCarthy (R-CA) was elected House Speaker just before midnight on Friday by a vote of 216-212, with 6 dissenting Republicans opting to vote ‘present’ and lowering the threshold needed for a majority. The dramatic votes had paralyzed the U.S. House in its opening week, which was unable to swear-in members, formalize a governing rules package, and establish committee rosters until a Speaker was chosen. A faction of nearly two dozen conservative House Republican lawmakers repeatedly voted against McCarthy until major concessions were made that stripped the Speaker of various powers and reinstituted the ability for a single House lawmaker to initiate a ‘motion to vacate the chair’ that could threaten to remove the Speaker from office at any point.
• The opening weeks of the 118^th Congress provided a preview for what the next two years might look like as the House Republican caucus attempts to govern with a narrow majority that currently stands at 222-212.
• For the first time since March 2020, House office buildings are open to the public and staff members are no longer required to escort guests. This has important implications for the upcoming 2023 NLBMDA Spring Meeting and Legislative Conference that will be held in-person from March 28-30 in Washington, DC.
• With House Speaker Kevin McCarthy (R-CA) confirmed, lawmakers have spent the last few weeks establishing official rosters for congressional committees and laying the groundwork for introducing new legislation.
• On January 13, the Treasury Department warned Congress that it will run out of options to avoid a default in June 2023 unless the debt limit is raised by lawmakers, but House Republicans are demanding that any increases to the debt ceiling should be paired with cuts to domestic spending.
• Established by Congress in 1917, the debt limit is the maximum amount of debt that can be taken on by the federal government to finance spending that has already been approved. The process of raising the debt ceiling has historically been uncontroversial but has become politically contentious in recent years as Republican lawmakers have sought spending cuts in exchange for increases to the debt limit.
• House Speaker Kevin McCarthy (R-CA) has pledged to use debt ceiling negotiations to demand cuts to the federal budget. Meanwhile, President Biden and Senate Democrats are calling for a “clean” increase of the debt ceiling without any policy strings or funding cuts attached. The emerging fight over the debt ceiling is a preview of upcoming budget negotiations that could derail the U.S. economy if they are not resolved by June.

 
Affordable Housing Credit Improvement Act of 2021 (S. 1136/H.R. 2573):

• In December, NLBMDA helped add 14 House and 9 Senate cosponsors to the Affordable Housing Credit Improvement Act (S. 1136/H.R. 2573).
• The bill ended the 117^th Congress with 207 House and 43 Senate bipartisan cosponsors but failed to be enacted as law.
• Heading into the final stretch of the 117^th Congress, NLBMDA sent a letter to congressional leadership urging them to attach the bill to any must-pass year-end legislation moving towards the floor, particularly the omnibus spending package, and created a grassroots action alert for our members to contact Congress in support of the bill.
• This is a key legislative priority for the lumber and building materials industry that would build and preserve more than 2 million housing units over the next decade by providing a 50% increase in allocations for the Low-Income Housing Tax Credit and boosting the number of affordable housing projects that can be built using private activity bonds.
• There is strong bipartisan support for the Affordable Housing Credit Improvement Act in Congress and both parties have increasingly expressed interest in affordable housing issues.
• NLBMDA anticipates that this bill will be reintroduced in the 118^th Congress before the end of April and continues to lobby members of Congress and their staff on expanding the Low-Income Housing Tax Credit.

 
Credit Card Competition Act (S.4674/H.R.8874):

• In 2022, a bipartisan group of House and Senate lawmakers introduced the Credit Card Competition Act (S.4674/H.R.8874), legislation to end excessive credit card swipe fees for LBM dealers by allowing small businesses to access more credit card payment network options.
• Unjustifiable increases in credit card fees are hurting lumber and building material dealers and consumers while the economy is facing a recession. This bill requires credit cards issued by the nation’s largest banks to be processed over at least two unaffiliated networks – Visa or Mastercard plus an independent network such as NYCE, Star or Shazam. Retailers would be allowed to choose which network to use so that payment networks would have to compete to offer the best pricing, security and service.
• Big banks and card networks like Visa and MasterCard unfairly profit at the expense of America’s small businesses with unjustified increases in swipe fees, charging small businesses more than 2% of the customer’s total bill every time a credit card is used to make a purchase. Credit card swipe fees have more than doubled over the past decade and soared 25% in 2021 alone to a record $137.8 billion. Swipe fees have been able to rise so much because of lack of competition with Visa and MasterCard controlling more than 80% of the credit card market. They block their competitors from handling many credit transactions and restrict processing to their own networks, prohibiting competition from innovative independent payment networks that offer both lower fees and better security.
• On November 16, NLBMDA sent a letter to every member of Congress urging them to support the Credit Card Competition Act (S.4674/H.R.8874), bipartisan legislation to alleviate excessive credit card swipe fees for LBM dealers by allowing small businesses to utilize more credit card payment network options.
• NLBMDA also created a grassroots campaign for our members to contact their elected officials in support the Credit Card Competition Act.
• Passing this bill is one of the most important things Congress can do to provide relief for small businesses and NLBMDA is actively lobbying lawmakers to protect our members from more credit card fee increases.
• NLBMDA is actively lobbying lawmakers on this legislation and has partnered with a coalition of merchants to protect small businesses from excessive credit card swipe fees.
• NLBMDA anticipates that the bill will be reintroduced in the 118^th Congress before the end of February and is actively lobbying lawmakers as part of a large coalition of retailers.

 
The Safer Highways and Increased Performance for Interstate Trucking (SHIP IT) Act:

• On January 24, Reps. Dusty Johnson (R-SD) and Jim Costa (D-CA) introduced the SHIP IT Act. The bill addresses truck labor shortages and supply chain issues for delivering freight. Among other things, the SHIP IT Act would:
  • Modernizes the authority for certain vehicle waivers during emergencies, allowing waivers in response to disease and supply chain emergencies.
  • Allows truck drivers to apply for Workforce Innovation and Opportunity Act grants.
  • Incentivizes new truck drivers to enter the workforce through targeted and temporary tax credits.
  • Streamlines the CDL process, making it easier for states and third parties to administer CDL tests.
  • Expands access to truck parking and rest facilities for commercial drivers.

• This bill is vital to strengthening the U.S. supply chain by increasing shipping capacity, lessening burdens on truck drivers, modernizing the CDL process, and allowing additional flexibilities during times of emergency.
• NLBMDA is lobbying lawmakers on Capitol Hill to support this bipartisan bill, and is working with a coalition of industry groups to support trucking reform that will strengthen the U.S. economy and supply chain for small businesses.

 
Congress Passes Resolution to Avert National Railroad Worker Strike

• On December 1, the U.S. Senate approved a House-passed resolution (H.J.Res.100) that forces rail labor unions to accept a contract that was previously negotiated with railroad companies in September, averting a national rail worker strike that was threatening to shut down America’s freight railroads on December 9. The Senate overwhelmingly approved the measure by a vote of 80-15, while the House passed it by a vote of 290-137. President Biden signed the joint resolution into law on Friday morning.
• Congressional leaders rushed to pass the legislation after President Biden publicly called on lawmakers to intervene last week. President Biden’s announcement came after NLBMDA sent a letter to the White House urging the Administration to resolve the rail worker contract dispute. NLBMDA was specifically was highlighted by the National Public Radio for sending that letter and pressuring the White House to act.
• The week before, on November 28, NLBMDA sent a letter to House and Senate leadership urging immediate floor action to prevent any disruptions to rail service as the threat of a strike loomed. Under the Railway Labor Act of 1926, Congress has authority to intervene in failed rail labor negotiations as a critical safeguard to protect the U.S. economy from massive disruptions. A railroad strike would have been catastrophic for the U.S. economy and risked long-term damage to the national supply chain.
• NLBMDA has actively lobbied lawmakers and their staff in Washington to prevent a railroad shutdown since this summer and applauds Congress and the White House for taking necessary action to shield small businesses from devastating economic consequences.
• Congress now shifts its focus towards negotiating the final details of an appropriations bill that must be passed by December 16, along with the National Defense Authorization Act of 2023, before lawmakers can head home for the holidays ahead of the new 118th Congress that convenes next month.

 
Section 301 Tariffs:

• On January 17, NLBMDA filed coalition comments with the Office of the United States Trade Representative (USTR) as part of its statutory four-year review of the China-related Section 301 tariffs.
• The Section 301 tariffs were first imposed over four years ago for the stated purpose of obtaining the “elimination of China’s harmful acts, policies, and practices” as it relates to forced technology transfer and the theft of intellectual property, but the purpose of the tariffs morphed as the trade war escalated unnecessarily.
• On December 15, NLBMDA sent a letter to every member of Congress urging for the immediate elimination of Section 301 and 232 tariffs on key home building materials as well as reinstatement of an exclusion process for Section 301 tariffs. The letter was also sent to the U.S. Secretaries of Commerce, Treasury, and Housing and Urban Development Departments, along with the USTR.
• The current tariffs on home building materials restrict the U.S. housing sector which has been further negatively impacted by supply chain disruptions and raw material and labor shortages. Tariffs on home building materials are unjustified, self-imposed taxes that not only harm industries critical to American homebuilding, property renovation, and community development in jeopardy, they also stifle any hope of economic resiliency.
• Since April 2018, U.S. Customs and Border Protection has assessed more than $165 billion in Section 301 tariffs on American companies who import products from China. These tariffs have had a disproportionate economic impact on American companies, consumers, and workers across the U.S. economy, and NLBMDA is urging the Administration to abandon this failed policy by rolling back the tariffs and pursuing a new and more effective strategy.
• NLBMDA continues to advocate for an immediate end to the Section 301 tariffs on products imported from China and is actively engaging with officials from the U.S Departments of Treasury and Commerce, as well as USTR and the U.S. International Trade Commission, to remove these harmful tariffs on the LBM industry.

 
Softwood Lumber Negotiations:

• In January, the U.S. Department of Commerce announced this that it is increasing tariffs on Canada’s two largest timber companies, West Fraser Timber Co and Canfor Corp, while maintaining duty rates on other Canadian businesses that range from 7.29% to 9.38%. West Fraser’s current duty rate of 8.25% will increase to 9.38%, while Canfor’s rate of 5.87% will rise to 7.29%.
• The new rates, which will take effect in August or September after a final review is completed, were filed by the Commerce Department following its fourth administrative review of anti-dumping and countervailing duty orders on softwood lumber products from Canada. Canadian Trade Minister Mary Ng issued a statement calling the tariffs an unjustified “tax on American consumers that increases building costs at a time of surging inflation,” and vowed to pursue legal avenues under both the U.S.-Mexico-Canada Agreement (USMCA) and the World Trade Organization.
• The softwood lumber tariffs are the legacy of a decades-long trade dispute over the structure of Canada's timber industry that intensified when the 2006 U.S.-Canada Softwood Lumber Agreement expired in October 2015. In the latest round of the ongoing trade dispute, Canadian producers have been paying U.S. lumber duties since April 2017, leading to a decline in Canada’s market share for softwood lumber in the U.S., falling from 33% in 2016 to 26% in 2022.
• The tariff remains a punitive tax on American consumers that weakens the U.S. housing market and prevents access to affordable homeownership by destabilizing the lumber supply chain. American builders continue to get more than a quarter of their softwood lumber from Canada and have been hit with exorbitant tariffs that have fluctuated unpredictably since 2017.
• NLBMDA is heavily lobbying trade officials in the Biden Administration and the Commerce Department to pursue a long-term agreement with Canada that eliminates tariffs and brings stability to the supply and pricing of softwood lumber.

 
NLBMDA Lobbies Congress Against the ENABLERS Act and the Corporate Transparency Act

• In December, the Senate removed the Establishing New Authorities for Business Laundering and Enabling Risks to Security (ENABLERS) Act from the House-passed National Defense Authorization Act of 2023 (NDAA). The ENABLERS Act threatened to dramatically expand the reporting requirements imposed on business owners and their employees put in place by the Corporate Transparency Act (CTA) in early 2021.
• NLBMDA actively lobbied on this issue and sent a letter to Senate leadership in September urging them to remove the ENABLERS Act during NDAA conference negotiations with the House.
  • The Act would require a broad pool of covered businesses, foundations, and charities to collect and report beneficial ownership information, report any suspicious transactions, and establish and enforce anti-money laundering policies.
  • Anyone engaged in an entity’s formation, acquisition, or disposal would be covered, as would owners and employees engaged in nearly every financial activity of the business, including money management, payment processing, wire transfers, or buying and selling currencies.
  • These covered individuals would be subject to audits conducted by the Treasury Department initially, while the Act requires Treasury to recommend additional enforcement tools after a year.
• NLBMDA continues to lobby against regulations on small businesses that were included in the CTA.
• On December 7, NLBMDA submitted a statement in support of litigation filed by the National Small Business Association that challenges the constitutionality of the Corporate Transparency Act (CTA). The CTA is an unprecedented attempt by the federal government to gather the personal information of millions small business owners, disproportionately targeting our members and subjecting them to increased paperwork, privacy risks, and potentially devastating fines and prison terms. Under the CTA, small business owners can be confronted with civil penalties of up to $10,000, 2 years’ imprisonment, or both, for failing to report their personal information.
• For additional background on the ENABLERS Act, please click here. You can read NSBA’s lawsuit against the CTA here and NLBMDA’s statement of support here.

 
NLBMDA Calls on Congress to Extend EBIDTA Standard

• In December, NLBMDA sent a letter to the Senate Finance and the House Ways & Means Committees calling for a year-end fix on businesses earnings before interest, tax, depreciation, and amortization (EBITDA).
• Debt financing plays an important role in supporting job-creating investments, but a stricter limitation on the deductibility of interest payments on business loans took effect at the beginning of 2022. Prior to January 1, 2022, businesses’ interest expense deductions were limited by section 163(j) to 30% of their EBITDA. Interest deductions are now limited to 30% of earnings before interest and tax (EBIT). By excluding depreciation and amortization, the stricter EBIT standard makes it more expensive for capital intensive companies to debt finance and grow their businesses. Under an EBIT standard, capital-intensive companies face higher taxes and increased financing costs.
• In the 117^th Congress, Sen. Roy Blunt (R-MO) and Reps. Joe Morelle (D-NY) and Adrian Smith (R-NE) introduced legislation to permanently preserve the EBITDA standard and ensure that the tax code does not penalize job-creating investments.
• NLBMDA supports this legislation and urges Congress to act immediately to extend the EBITDA standard for at least four years, which would reverse the EBIT change for 2022 and provide much-needed tax certainty through 2025. You can read the full letter here.

 
NLBMDA’s Lumber Dealers PAC (LuDPAC)

• NLBMDA’s Lumber Dealers Political Action Committee (LuDPAC) is used to strategically donate money to candidates and members of Congress who support our industry. As the November midterm elections approach, LuDPAC has been extremely active in targeting key lawmakers.
• The Lumber Dealers Political Action Committee (LuDPAC) mission is to engage lumber and building material dealers in the political process and promote the building material industry’s legislative agenda by electing industry-friendly, pro-business candidates to federal office.
• 96% of our LUDPAC incumbent recipients won their election: 8 Senators and 18 House Representatives
• LuDPAC donated to winning Senate races: Sens. Tim Scott (R-SC), Jerry Moran (R), Marco Rubio (R-FL), Ron Johnson (R-WI), Todd Young (R-IN), Mike Crapo (R-ID), John Thune (R-SD), and Ted Budd (R-NC).                         
• LuDPAC donated to winning House races: Reps. David Valadao (R-CA), Young Kim (R-CA), Drew Ferguson (R-GA), Rick Allen (R-GA), James Comer (R-KY), Blaine Luetkemeyer (R-MO), Tom Emmer (R-MN), Pete Stauber (R-MN), Andrew Garbarino (R-NY), Brian Fitzpatrick (R-PA), Dusty Johnson (R-SD), Adrian Smith (R-NE), Henry Cuellar (D-TX), Claudia Tenney (R-NY), Michelle Steel (R-CA), Lori Chavez-Deremer (R-OR), Monica De La Cruz (R-TX), and Derrick Van Orden (R-WI).                    

 
Regulatory Update:

• President Biden’s Fall 2022 Regulatory Agenda:
  • In January 2023, the Biden Administration released its Fall 2022 Regulatory Agenda, a semiannual agenda lists all regulations under active consideration in the one-year period ahead as well as longer-term regulatory actions, and ensures public engagement in the process of establishing regulations. Although aspirational in nature, the agenda provides insight into the Administration’s upcoming regulatory activities and priorities. Below is a timeline of key rulemakings that could impact lumber and building materials industry.
    • Heat Illness Prevention in Outdoor and Indoor Work Settings: OSHA published an advance notice of proposed rulemaking (ANPRM) in October 2021 to explore rulemaking on a heat stress standard. OSHA has started to analyze the comments from the ANPRM and is seeking to eventually propose a new rule. A Small Business Advocacy Review panel was scheduled to begin in January 2023.
    • Improve Tracking of Workplace Injuries and Illnesses: A proposed rule was released in March 2022 and NLBMDA submitted comments in June 2022. A final rule is scheduled for March 2023
    • Overtime Rule/White Collar Exemptions: DOL is looking to raise the overtime threshold. A proposed rule is scheduled for May 2023.
    • Independent Contractor Rule: DOL is proposing a new rule on the classification of independent contractors as employees. A proposed rule was released in October 2022 and NLBMDA submitted comments in December. A final rule is scheduled for May 2023.
    • Crane and Derricks in Construction Rule: OSHA is proposing corrections and amendments to the final standard for cranes and derricks published in August 2010. A proposed rule is scheduled for June 2023.
    • Lock-Out/Tag-Out Update: A proposed rule is scheduled for July 2023.
    • Joint Employer: The National Labor Relations Board (NLRB) issued a proposed rule on joint employer status in September 2022 and NLBMDA submitted comments in December. A final rule is scheduled for August 2023.
    • Infectious Disease: A proposed rule is scheduled for September 2023.

 
NLBMDA Responds to Department of Labor’s New Independent Contractor Rule

• On October 11, the Department of Labor’s Wage and Hour Division (DOL) proposed a new rule governing the classification of employees and independent contractors.
  • Read the proposed rule in the Federal Register.
  • Read the press release from DOL.
• Under the Fair Labor Standards Act (FSLA), companies are required to provide benefits such as minimum wage and overtime to employees, but not to independent contractors.
  • The proposed rule would rescind the prior Trump Administration rule in which two core factors – control over the work and opportunity for profit or loss – carried greater weight in determining the status of independent contractors.
  • Under the new proposed rule, employers would use a totality-of-the-circumstances evaluation, in which all the factors do not have a predetermined weight. Those factors may include the amount of skill required in the work, the degree of permanence of the working relationship, the worker's investment in equipment or materials required for the task, and the extent to which the service rendered is an integral part of the employer's business.
• In December, NLBMDA submitted comments to the Department of Labor’s Wage and Hour Division (DOL) in response to their new proposed rule governing the classification of employees and independent contractors. Under the Fair Labor Standards Act (FSLA), companies are required to provide benefits such as minimum wage and overtime to employees, but not to independent contractors. In January of 2021, the Trump Administration issued a final rule on the classification of independent contractors which provided additional flexibility to employers. However, the Biden Administration has been attempting to reverse the final rule.
• NLBMDA is closely monitoring that status of this rulemaking and is prepared to engage DOL on behalf of the LBM industry. NLBMDA is involved in stakeholder roundtable discussions with the Small Business Administration and has joined coalition efforts with the U.S. Chamber of Commerce, and business groups are already preparing to launch potential lawsuits that will challenge the final rule, which is scheduled for May 2023.

 
NLBMDA Responds to National Labor Relations Board’s New Joint Employer Standard Rule

• On September 6, the National Labor Relations Board (NLRB) proposed a new rule on the joint-employer standard that increases the liability of private businesses for violating labor laws. The new rule reverses the NLRB’s Trump-era 2020 ruling that a company cannot be made to bargain with workers employed by a staffing agency in a long-running dispute over the standard for determining liability for labor law violations.
  • NLRB’s new proposed rule can be found here.
• Under the new proposed rule, two or more employers would be considered joint employers if they “share or codetermine those matters governing employees’ essential terms and conditions of employment,” such as wages, benefits and other compensation, work and scheduling, hiring and discharge, discipline, workplace health and safety, supervision, assignment, and work rules. If two entities, such as a staffing agency and a private business, are joint employers under the NLRA, both must bargain with the union that represents the jointly employed workers and both are potentially liable for unfair labor practices committed by the other.
• In December, NLBMDA submitted comments to the National Labor Relations Board (NLRB) in response to their new proposed rule on the joint employer standard under the National Labor Relations Act (NLRA). NLBMDA urged NLRB to withdraw the proposed new rule, which increases the liability of private businesses for violating labor laws and considers two or more employers to be joint employers if they codetermine essential terms and conditions of employment such as wages, benefits and other compensation, work and scheduling, hiring and discharge, discipline, workplace health and safety, supervision, assignment, and work rules. If two companies are joint employers under the NLRA, both must bargain with the union that represents the jointly employed workers and both are potentially liable for unfair labor practices committed by the other.
• This began in 2013 when a union won an election to represent employees of staffing firm who worked at a California recycling plant operated by Browning-Ferris Industries, who challenged the results of the election and argued that it was not a joint-employer. In 2015, the Obama-era NLRB ruled in favor of the union and adopted a new standard in which companies are considered joint-employers when they indirectly control employees’ working conditions. The decision was controversial with business groups and Republican lawmakers, who argued it would improperly punish companies for labor law violations committed by other businesses. In 2020, the NLRB had a Republican majority appointed by President Trump and adopted a new standard that ruled in favor of Browning-Ferris. In September 2022, the NLRB (now under the control of President Biden’s appointments) issued a notice of proposed rulemaking on the joint-employer standard that reverses the Trump-era standard. NLRB’s new rule is expected to be finalized during the first half of 2023.
• NLBMDA is closely monitoring that status of this rulemaking and is involved in stakeholder roundtable discussions with the Small Business Administration and has joined coalition efforts with Associated Builders and Contractors (ABC). You can read NLBMDA’s submitted comments here, along with the proposed rule in the Federal Register and the accompanied press release from NLRB.

 
NLBMDA Member Survey: FTC Proposes Ban on Non-Compete Agreements

• The Federal Trade Commission (FTC) recently announced a proposed rule that will ban non-compete agreements between nearly all employers and their workers – including employees, independent contractors, interns, externs, volunteers, apprentices, and sole proprietors who provide a service to a client or customer. Under the proposed rule, employers are restricted from entering into non-compete clauses with workers and are also required to rescind any existing non-compete agreements.
• A “non-compete” clause is defined as “a contractual term between an employer and a worker that prevents the worker from seeking or accepting employment with a person, or operating a business, after the conclusion of the worker’s employment with the employer.” This could also potentially apply to non-disclosure agreements, depending on how they are written. All current state laws would be preempted unless they provide greater protection to the worker than the proposed rule.
• You can read the full text of the proposed rule by clicking here and the FTC’s official press release by clicking here.
• NLBMDA is gauging the impact that the FTC’s proposed ban on non-compete clauses would have on our members as we develop a course of action in response.
• Please click here to respond to a brief survey on how this rule would affect your business.
• On January 31, NLBMDA sent a letter to the FTC urging them to extend the comment response period by 60 days.

 
OSHA Increases Maximum Penalties:

• In January, the U.S. Department of Labor announced changes to OSHA civil penalty amounts for 2023. OSHA’s maximum penalties for serious and other-than-serious violations will increase from $14,502 per violation to $15,625 per violation. The maximum penalty for willful or repeated violations will increase from $145,027 per violation to $156,259 per violation. The new OSHA penalty amounts became effective on January 17, 2023. Visit the OSHA Penalties website and read the final rule for more information.
• OSHA offers a variety of options for employers looking for compliance assistance. The On-Site Consultation Program provides professional, high-quality, individualized assistance to small businesses at no cost. OSHA also has compliance assistance specialists in most of their 85 Area Offices across the nation who provide robust outreach and education programs for employers and workers. NLBMDA members can find and contact OSHA’s regional and area offices by clicking here.

 
OSHA Expands National Emphasis Program on Combustible Dust

• In January, OSHA issued a revised Combustible Dust National Emphasis Program (NEP) to continue OSHA inspections of facilities that generate or handle combustible dusts likely to cause fire, flash fire, deflagration and explosion hazards. The Combustible Dust NEP was revised based on enforcement history and combustible dust incident reports and sets forth a new approach for locating and inspecting subject establishments. In 2018, wood and food products made up an average of 70% of the materials involved in combustible dust fires and explosions. Incident reports indicate that the majority of the industries involved in combustible dust hazards are wood processing, agricultural and food production and lumber production, but others are susceptible as well.
• Notably for NLBMDA members, the updated NEP now includes the North American Industry Classification System (NAICS) codes for Cut Stock, Resawing Lumber, and Planing and Truss Manufacturing as industries with a higher likelihood of having combustible dust hazards. This means that these industries, along with Lumber, Plywood, Millwork, and Wood Panel Merchant Wholesalers, are now additional targets for OSHA inspections concerning combustible dust. OSHA offers a variety of options for employers looking for compliance assistance.
• Visit OSHA’s Combustible Dust website, view the Combustible Dust National Emphasis Program, and read the official OSHA press release for more information.

 
USCIS Proposes Increases In Business Immigration Fees

• On January 4, 2023, the United States Citizenship and Immigration Services (USCIS) proposed a rule increasing fees for employers who petition for workers and sponsor them for permanent residence.
• USCIS also proposes a new program fee of $600 per visa to be paid by businesses for both temporary and permanent visa categories to fund the U.S. asylum program. Proposed Fee Increases Include:
  • H-1B Visas (Skilled/Specialty Occupation Workers)- Fee Increases of $920 -$1,135 per visa (200-247 percent). This includes a $215 H-1B registration fee, up from the original $10 fee.
  • H-2A Visas (Agricultural Guest Workers) and H-2B Visas (Non-Agricultural Guest Workers)- Fee Increases of $670-$1230 per visa (146-267%).
  • L-1 visas (Temporary intracompany transferees)- Fee increase of $1,525 (332%).
  • Immigrant Petitions-Fee Increase of $615 (88 percent).

• NLBMDA is evaluating the effect this will have on our members, including compliance costs from this rule and regulatory alternatives that would minimize the impact for small businesses.
• Written comments are due to USCIS by March 6, 2023.
• You can read the rule here.