BizVoice -- January / February 2018

January/February 2018 – BizVoice/Indiana Chamber 25 threatens energy infrastructure investment if approvals can be so arbitrarily revoked. Impact: Creates dangerous precedent of a federal entity reversing course near the end of an approved project. The latest: President Trump approved a final permit for the pipeline. Then, a U.S. district judge ordered federal regulators to conduct a new environmental review (deeming the first one inadequate); the pipeline is still operating while that is taking place. Finance Proposed Consumer Financial Protection Bureau rule seeks to remove “mandatory arbitration” for financial company consumers, thereby allowing these customers to seek class- action lawsuits against companies. Impact: Opens up financial institutions to more consumer litigation. Rulemaking from federal bodies that oversee banking and other financial institutions that have great bearing on how those entities conduct their businesses. (Authority directed by the Dodd-Frank Act; however, rulemaking changes can occur at the agency level.) Impact: Vast overreach that is costly for these businesses (to comply with) and, ultimately, their customers. The latest: In summer 2017, the U.S. Treasury released a report essentially calling for the rollback of Dodd-Frank. Separately, the House voted along party lines to repeal many of the stricter Dodd-Frank financial reforms, but there has not been similar progress in the Senate. Recently-finalized Department of Treasury rules (under IRC section 385) re-characterize certain transactions between related companies, treating the resulting debt as equity instead. (Intended to address corporate inversions; effective on debt issued after January 1, 2017.) Impact: Will unfairly reflect the internal operations of businesses, resulting in unjustified taxation. The latest: In summer 2017, the Treasury Department and IRS issued a 12-month delay of the documentation requirements, which were set to take effect January 2018. (Other aspects of 385 are still effective in 2018.) Health and Workplace Safety Orders that support Obamacare. Impact: Perpetuates the higher cost of health care premiums for employers and their workers. FDA menu labeling rules requiring restaurants and grocery stores to list calories for the food they sell. (Provision of Obamacare that has previously been delayed; was slated to go into effect May 2017.) Impact: Puts restaurants, particularly, in an impossible position to fulfill the rule due to menu special orders. The latest: The FDA delayed the implementation until May 2018, but the rule is expected to go into effect then. Rule guidance was released in November 2017. OSHA rule to limit workers’ exposure to respirable crystalline silica to 50 micrograms per cubic meter of air, averaged over an eight-hour shift. (Effective June 23, 2016; companies have one year from that date to comply.) Impact: Viewed as unachievable; could drive many foundries and construction companies out of business. The latest: OSHA delayed implementation until late September 2017 for companies involved in the construction industry, in order to allow the agency to conduct additional outreach and provide educational materials and guidance for affected employers. Enforcement of this standard began on October 23, 2017. Requirements for other industries, including manufacturing, must be met starting June 23, 2018. OSHA recordkeeping and reporting rule requiring certain companies with 250 or more employees to make all injury and illness data public via electronic forms. (Lawsuit filed January 2017 with the U.S. Court of Appeals.) Impact: This system doesn’t capture close to all of the pertinent information, yet allows OSHA to now cite employers even without an employee complaint. The latest: OSHA extended the deadline for submitting forms to December 1, 2017. This provided the affected companies with more time to familiarize themselves with the electronic reporting system, as well as gave the Trump administration an opportunity to review the new electronic reporting requirements before they were implemented. Labor Relations Overtime rule would double the salary threshold – from $23,660 to $47,476 per year – under which most salaried workers are guaranteed overtime. Impact: Immediate payroll hikes for many employers, which could jeopardize jobs and business growth. The latest: In September 2017, the Trump administration announced it would not appeal a district court’s ruling that said the government overreached when it expanded the number of people covered. This formally puts an end to the far-reaching overtime rule. Paid sick leave for federal contractors, which requires companies that do business with the federal government to provide their employees with at least seven days of paid sick leave each year, including paid leave to allow for family care (effective January 1, 2017). Impact: Will put another unnecessary and costly burden on smaller employers in particular. Federal Acquisition Regulatory Council’s final rule and the Department of Labor’s guidance implementing the “Fair Pay and Safe Workplaces” executive order, which subjects existing and prospective government contractors and subcontractors to a broad new set of record-keeping, reporting and compliance requirements or risk blacklisting. Impact: Would result in fewer qualified bids for federal contracts – as well as needless delays and litigation – thereby crippling the contract award process. The latest: President Trump issued an executive order in the spring revoking the “Fair Pay and Safe Workplaces” executive order. Technology FCC net neutrality rule to regulate broadband; 2015 rules require service providers to treat all web traffic equally and designates broadband like a public utility. Impact: Essentially gives regulatory control of the internet to the federal government. One potential unintended consequence is slowing down innovation. The latest: In May 2017, FCC Chairman Ajit Pai initiated a rulemaking to eliminate the Title II public-utility style designation of broadband and examine whether to keep net neutrality rules. In late November, the FCC formally announced its decision to repeal net neutrality and voted 3-2 to do so on December 14.