"Blacklisting" and OSHA's "Volks" Rules Rolled Back

Regulation | April 07, 2017 | by Jennifer Hilliard

President Trump has signed two measures passed by Congress to roll back controversial employment regulations issued by the Obama Administration.  

The disapproval resolutions nullifying the two rules were passed pursuant to the Congressional Review Act (CRA). The CRA is designed to allow Congress to overturn agency rules adopted in the previous 60 legislative days, meaning the legislature can review Obama administration regulations submitted to Congress as far back as mid-June 2016.

One regulation rolled back under a CRA resolution was the Fair Pay and Safe Workplaces rule (commonly referred to as the "Blacklisting Rule") issued by the Federal Acquisition Regulatory Council, which began as an Executive Order issued by President Obama in 2014.

Major portions of the rule had been on hold since an October 2016 decision by a U.S. District Court in Texas.

The rule would have required federal contractors to report to the federal government all violations of 14 different federal labor laws (and similar state laws) going back three (3) years, including violations that had not been fully litigated in court, even if they still were being contested or had been settled. Under the rule, the government then would determine whether a federal contractor was responsible enough to be awarded more contracts.  LeadingAge members with Veterans Administration (VA) contracts would have been affected by the rule.

The other regulation nullified by a CRA resolution was the so-called "Volks rule", issued by the Occupational Safety and Health Administration (OSHA), that allowed the agency to issue citations to employers for failing to record work-related injuries and illnesses going back five (5) years, contrary to a six-month statute of limitations.

OSHA issued the Volks rule in December, 2016, with an effective date of January 18, 2017. OSHA issued the rule in response to a 2012 decision by the U.S. Court of Appeals for the District of Columbia (AKM LLC d/b/a Volks Constructors v. Sec’y of Labor, 675 F.3d 752 (D.C. Cir. 2012)), which held that OSHA could not issue citations for failing to record an injury or illness beyond the six-month statute of limitations set out in the Occupational Safety and Health statute. The rule contravened the court’s decision in Volks and provided that employers have a continuing obligation to make and maintain an accurate record of each recordable injury and illness for five years, subjecting them to citations for failing to do so even if the failure was inadvertent.

Despite nullification of the rule, employers are still required to maintain injury and illness records going back five (5) years so that if the employer receives new or additional information affecting recordability of an injury or illnesses, they should update their OSHA 300 Logs accordingly.  The nullification merely affects OSHA's ability to issue a citation following expiration of the six-month statute of limitations.

An official notice of the nullification was published in the May 3, 2017 edition of the Federal Register.