Regulation Challenges: Supreme Court Will Decide If Government Has an Unfair Advantage
Plaintiffs in the two cases being heard by the Supreme Court seek to overturn a previous Supreme Court decision made decades ago. They say it gives the government an unfair advantage when someone challenges a regulation in court. The Supreme Court expects to reach a decision in the two cases by late spring/early summer.
NAHB has a long history of fighting against “Chevron Deference,” which requires courts to abide by a statute if it is “clear,” but also requires courts to defer to a federal agency’s interpretation of an unclear statute if the interpretation is “reasonable,” even if it is not the best interpretation. As a replacement for Chevron, attorneys argue that courts should give “weight” to an agency’s interpretation of a statute, but not defer to it. Chevron Deference is clearly biased toward federal agencies by granting them broad leeway to both interpret and implement regulations.
Another key point made against Chevron is that it puts too much power in the hands of the unelected agencies. As part of the executive branch, the federal agencies must enforce the laws. However, because Congress also delegates its authority to write the regulations, the agencies both create and enforce many laws.
Finally, Chevron gives Congress an incentive to write ambiguous laws. Chevron allows Congress to forgo doing the difficult work of drafting clear laws by letting it pass the work off to the agencies. The agencies can then continuously change the law by implementing their own interpretation as long as they are “reasonable.”
Wondering How to Classify Labor on Those Tax Forms?
The U.S. Department of Labor (DOL) published a final rule changing its policy for determining independent contractor status under the Fair Labor Standard Act. Importantly, this test will not impact tests by the IRS or other federal agencies. And changes in this final rule will not go into effect until March 11, 2024.
NAHB filed comments when changes to the Independent Contractor determination rules were first proposed in 2022, noting that the new policy threatens to impact many industries that rely on the subcontractor business model, including residential construction.
The final rule restores a “totality-of-the-circumstances” analysis, setting forth six factors to consider when determining whether a worker is an employee or an independent contractor. Ultimately, it comes down to whether the worker is economically dependent on the employer (and thus an employee) or in business for themselves (and thus an independent contractor), says NAHB in its analysis.
OSHA Increases Penalties
OSHA’s maximum penalties for violations increased from $15,625 per violation to $16,131 per violation. And the maximum penalty for willful or repeated violations will increase from $156,259 per violation to $161,323 per violation.
Top OSHA violations for fiscal year 2023:
- Fall Protection – General Requirements: 7,271 violations
- Hazard Communication (Chemicals): 3,213
- Ladders: 2,978
- Scaffolding: 2,859
- Powered Industrial Trucks: 2,561
- Lockout/Tagout: 2,554
- Respiratory Protection: 2,481
- Fall Protection – Training Requirements: 2,112
- Personal Protective and Lifesaving Equipment – Eye and Face Protection: 2,074
- Machine Guarding: 1,644
2024 Marks the International Code Council’s 30th Anniversary
As an international nonprofit dedicated to building safety, affordability and sustainability. With over 100 years of impact through its legacy organizations, the Code Council has driven the development and implementation of the International Codes® (I-Codes) in all 50 U.S. states and many other countries.
Formed on December 9, 1994, by its three legacy organizations and officially consolidated in 2003, the Code Council was created to develop a single set of comprehensive and coordinated model codes. To date, the I-Codes are the most widely used and accepted model codes available to support the built environment, impacting the safety of nearly 2 billion people globally. The I-Codes reference more than 1,600 standards developed by the Code Council and other standards developing organizations.
Since its formation, the Code Council has grown to offer a wide range of solutions to the building safety community. Currently, the Code Council has eleven offices in three different countries and is active in more than 100.
Watch Paul Evan’s presentation about how codes are derived, how codes effect your cost of building and what’s working for the next code cycle presented at Building Savvy’s Building Science Day event last November.
Paul Evans, VP of Millwork Growth and Innovations at Builders First Source, is licensed as an engineer in Texas and Louisiana, holds GC licenses in 17 states, and spent many years as a voting member of the ICC.