Federal Policy

• Overtime Rule Adopted by the Department of Labor (DOL)

DOL released a final version of overtime rules for drastic new changes to hourly, salaried and high-income standards in July 2015.  The DOL proposed overtime standard would nearly double the existing salary threshold of $26,660 to $47,476.

This DOL rule also forces employers to change how employees are paid (hourly vs. salaried), how workers account for and complete their work (clocking in vs. working to project completion or promotion), and in general, the structure of how employees work within a company (at work stations vs. working remotely).

The Colorado Chamber supported the “Protecting Workplace Advancement and Opportunity Act” (S.2707/H.R. 4773) introduced in the 114^th Congress.  See the support letter The Colorado Chamber sent to all members of Congress.  This legislation would require DOL to do a comprehensive and exhaustive economic impact analysis prior to proceeding with the overtime rule, while also requiring a narrower focus for changes to subsequent overtime standards.

For more information, click here.

• Equal Employment Opportunity Commission (EEOC) – Wage Reporting

The Equal Employment Opportunity Commission (EEOC)’s controversial wage reporting rule was pushed by the Obama Administration to ‘root out discrimination and reduce gender pay gap’ but did not consider the hours and cost for compliance for employers, nor did the Administration disclose how the gathered data would be used in the future.

As the U.S. Chamber put it, “The EEOC is proposing to collect extensive data that has never been collected by the federal government, without any developed framework to review the data, or use the data for any legally authorized or recognized purpose.”

The proposed rule would require businesses of 100 or more employees to report wage based on: Sex, race, ethnicity, job band & pay, by expanding use of the existing EEO-1 report as the reporting vehicle.

The Colorado Chamber’s filed official opposition comments with the EEOC to provide a more comprehensive business perspective:

“Pay within a job title, to say nothing of a job category, can vary wildly based on a host of factors (education, years of experience, expertise, company size, etc.). The proposed one-size-fits-all approach to pay bands and job titles ensures that whatever data is collected will be useless, or at the very least inaccurate, for the EEOC’s intended analysis.”  – The Colorado Chamber President Chuck Berry

For more information, click here

• National Labor Relations Board (NLRB) Actions – Joint Employer Rule, Ambush Elections, Persuader Rule & Micro Unions

Joint-Employer:

The National Labor Relations Board (NLRB) pursued the “joint-employer rule” in an aggressive approach to unionize franchise businesses.  The NLRB interpreted the McDonald’s and Browning-Ferris cases to mean that if a franchisor (parent company) has influence over franchisees (i.e. your local hotel chain, barber or fast food restaurant franchise) – the two businesses would now be a “joint employer” and no longer independent companies.

For the last 30 years, franchises have been independent companies, typically licensing intellectual property (recipes, business models, etc.) from a parent company/franchisor.  However, the franchisee is free to decide who and how to hire, where to wages, and to make day-to-day management decisions.  Under the Obama Administration, the NLRB was clear that this rule’s intent was to facilitate and increase labor union memberships.

With joint-employer, NLRB treats franchisors and franchisees as one entity, one business.  It also ensures that if a national franchise unionizes, the NLRB would apply national union terms to individual franchisees. In the simplest terms, what one does, all must do (or not do) under this rule.  As one labor expert put it, “The NLRB has gone rogue.”

The Colorado Chamber will continue working closely with our Colorado Congressional delegation, while educating the Trump Administration on the hazards of the joint-employer rule pushed by the NLRB.

To learn more about The Colorado Chamber’s concerns and action regarding joint employer, click here for The Colorado Chamber President Chuck Berry’s letter to the NLRB.

Joint-Employer could have widespread impact on:

• Access to Small Business Administration (SBA) grants for starting or purchasing a franchise; NLRB definition would disqualify franchises from grants
• Business success and entrepreneurs; eliminates lowest barrier and most successful entry point for new businesses
• Workforces unionizing to change base pay rates
• Treatment of pensions; both losses and new obligations
• Healthcare coverage decisions and costs (i.e. businesses now required to provide healthcare coverage as a “large employer” where before NLRB rule had been exempt.

Persuader Rule (DOL):

On November 16, 2016, a Texas judge issued a permanent injunction, prohibiting further implementation of the “persuader rule” by the Department of Labor.

The so-called “persuader rule” went into effect April 2016 and required businesses to disclose if outside counsel, consultants or other business groups were utilized to aid an employer in deciding how, if, or whether to talk with and educate employees about potential effects of unionizing on an employer and their employees.

A U.S. District Court signed the injunction order against the Department of Labor (DOL), on behalf of business groups suing the Obama Administration for labor regulation oversteps.  As written, the ‘persuader rule’ would have limited business communications to the detriment of employers, but to the benefit of labor unions, while opening a door to even more government oversight of day-to-day business operations.

“The chilling of speech protected by the First Amendment is in and of itself an irreparable injury.  The new (persuader) rule is defective to its core because it entirely eliminates the… advice exemption.” – U.S. District Court Judge Sam Cummings

• When the rule was first offered in 2014, DOL estimated it would cost individual filers ‘more than $825,000’ in compliance costs.  The U.S. Chamber said the economic burden of the rule’s first year could have been at least $910 million.

Ambush Elections, Micro Unions & Employee Privacy

The Colorado Chamber strongly opposes so-called “ambush elections,” reconsideration of the Register Guard decision and further use of Excelsior lists.

The Colorado Chamber called on the NLRB to consider the position and reasoning of Colorado’s and our nation’s employers, keeping in mind the welfare of our national economic recovery.  The Colorado Chamber continues to oppose ambush elections, as well as use of the Register Guard decision and Excelsior lists to require businesses provide resources and employee information to unions.

In October 2016, the U.S. Chamber released a report called “TROUBLE WITH THE TRUTH: Specialty Healthcare & the Spread of Micro-Unions” about effects of the NLRB’s 2011 three-to-one decision in Specialty Healthcare and Rehabilitation Center of Mobile, where the NLRB set their precedent for significantly smaller and fractured ‘micro’ bargaining units.

“In practice, the Specialty Healthcare decision means that the NLRB will approve almost any proposed bargaining unit a union recommends, regardless of how small or fragmented. Many practitioners of labor law, including the dissent in the case, have argued that the Board’s ruling effectively allows unions to petition for bargaining units that reflect little more than the extent to which they have already recruited supportive employees, in violation of Section 9(c)(5) of the National Labor Relations Act (NLRA or Act).”

• Ozone Rules:

The Colorado Chamber continues to be extremely active in shaping the future of Colorado’s ozone regulations.  The Colorado Chamber began our efforts by gathering business opinions and filing official comments with the Environmental Protection Agency (EPA) re: the National Ambient Air Quality Standard (NAAQS) ozone rules which proposed lowering ozone standards from 75ppb to somewhere between 60ppb and 70ppb.  The Colorado Chamber strongly opposed the EPA’s recommendation and outlined the business case for retaining the previous standard of 75ppb.

The Colorado Chamber worked extensively with our Colorado Members of Congress, taking time to educate our Colorado House delegation and Governor John Hickenlooper about why more reasonable ozone standards are needed, and also asking that a letter be sent to EPA Administrator McCarthy from our delegation. The Colorado Chamber joined our partners at the National Association of Manufacturing (NAM) with a letter to President Obama as well.

The Colorado Chamber supported Sen. Thune (R-SD)’s S. 751, “The Clean Air And Strong Economies Act” with letters to U.S. Senators Michael Bennet and Cory Gardner requesting their support as well.

In conjunction with The Colorado Chamber, the Center for Regulatory Solutions published a study, “Slamming the Brakes:  How Washington’s Ozone Plan Will Hurt The Colorado Economy And Make Traffic Worse.”  The Colorado Chamber’s work on ozone limits was also highlighted by the U.S. Chamber of Commerce with printings in the Denver Post and New York Times.

For more information on the cost of ozone to Colorado and The Colorado Chamber comments, click here .

• Clean Power Plan (CPP)

The CPP would require states to reduce CO₂ emissions 32% from 2005 levels, by 2030. The Colorado Chamber has worked hard to ensure public comments to the EPA accurately captured and reflected our members, as the voice of Colorado business.  The Colorado Chamber also ensured your business stories and concerns about the CPP were shared directly with every member of the Colorado Congressional delegation.

The Clean Power Plan represents a complex, and comprehensive set of policy changes that place significant burdens on primary sectors of Colorado’s economy.  The Colorado Chamber participated with our national partners in opposing the CPP, and in light of a temporary injunction issued by the courts, The Colorado Chamber continues to follow and participate on behalf of businesses in the continued development and implementation of the CPP by governors.

The Supreme Court issued temporary “stay” orders for the Clean Power Plan (CPP), halting implementation by the Environmental Protection Agency (EPA) until lower courts can decide if the Obama Administration’s landmark carbon plan is constitutional.  In the meantime, The Colorado Chamber remains part of the U.S. Chamber’s Amicus Curiae brief for the underlying court case.

The Colorado Chamber met with Region VIII Director McGrath, the EPA Assistant Director Callie Videtich, the Air Quality Director, and EPA Region VIII Congressional Liaison to address concerns raised by The Colorado Chamber members about the CPP.  From that meeting, The Colorado Chamber leveraged EPA Assistant Director and Regulatory Assistance Manager Videtich to attend a The Colorado Chamber E&E Council to hear our members’ business perspectives directly.

At The Colorado Chamber’s March 2015 Energy & Environment Council meeting with EPA Assistant Director Videtich, Colorado Department of Public Health and Environment (CDPHE) Director Rudolph was an outspoken guest speaker – identifying CPP’s impossible-to-meet deadlines imposed by the EPA, and articulating Colorado’s stakeholder process to encourage The Colorado Chamber’s ongoing participation.

• Click here for the CPP’s timeline and next steps
• Click here for Supreme Court stay order FAQs from our partners at the U.S. Chamber and their legal counsel team.
• Click Here for EPA’s Colorado-specific numbers, interim standards and calculations for compliance.
• WOTUS – Waters of the U.S. Regulations

Proposed changes to the WOTUS section of the Clean Water Act (CWA) by the Obama Administration have become virtually synonymous with government overreach and using federal agencies to tell businesses, manufacturers and private land owners how to operate.  In August 2015, a District Court judge issued an injunction on the WOTUS rule for 13 filing states, including Colorado, which sued the federal government for overreach and irreparable harm.  The EPA maintains that all remaining states must comply with WOTUS.

In March 2014, the Environmental Protection Agency (EPA) with the Army Corps of Engineers released a proposed rule to redefine the term “waters of the United States” (WOTUS) within the Clean Water Act (CWA).  Currently, “waters of the U.S.” are defined as only “navigable waters” where it’s illegal to discharge pollutants, dredged or fill material into navigable waters.

Throughout the WOTUS process, The Colorado Chamber actively sought and successfully received an extension of the EPA comment deadline to ensure all potential stakeholders had enough time to submit their concerns and provide changes to the proposed WOTUS rule.  Read official The Colorado Chamber comments here.

The Colorado Chamber Key WOTUS Concerns and Messages to the EPA

• Science used in EPA studies were called into question for methodology
  • EPA told scientists to decide only whether water is “connected” or not, as well as the EPA providing bad parameters for studies, where scientists conducting studies were not told what is allowed by law to be part of findings
  • EPA and Office of Management and Budget (OMB) requirements for peer reviews of studies and scientific findings were violated and completely ignored
• Businesses were not meaningfully involved in the proposed WOTUS rule development, while alternatives to the rule and the proposed rule’s impact on the economy were not studied as required by Small Business Regulatory Flexibility Act and Executive Order 12866.
• The Colorado Chamber has extreme concerns that the EPA proposed expanding powers to require individual properties to comply to WOTUS on a case by case basis using newly-proposed and hotly-contested definitions of “other waters” and “significant nexus” definitions.
  • Proposed non-compliance fines could be up to $37,500/day, could potentially stop economic development, while opening up businesses and individuals to environmental lawsuits in federal court

• Tax Reform:

The Colorado Chamber is working with the U.S. Chamber and National Association of Manufacturers (NAM) for provisions addressing much-needed changes for the following areas:

Capital Cost Recovery
Employee Benefits and Retirement Security
International Tax
Federal Spending (Including: Defense Manufacturing, Debt Ceiling, Deficit Reduction, Entitlement Reform)
Permanent R&D Tax Credit
Small Business Tax
Tax Rates and Base Broadeners

In September of 2015, The Colorado Chamber joined a nationwide letter pushing for tax reform provisions in Congress’ tax extenders package.

“The undersigned organizations, representing millions of individuals, employees, businesses of all sizes, community development organizations and non-profit organizations, urge Congress to act immediately on a seamless, multiyear or permanent extension of the expired and expiring tax provisions, including appropriate enhancements. These tax provisions are critically important to U.S. jobs and the broader economy.

Failure to extend these provisions is a tax increase. It will inject instability and uncertainty into the economy and weaken confidence in the employment marketplace. Acting promptly on this matter will provide important predictability necessary for economic growth.”

• Regulatory Reform

The Colorado Chamber believes tax reform and regulatory reform go hand-in-hand to address businesses and people most affected by outdated tax schedules and regulatory burdens.

The Colorado Chamber supported Sen. Cory Gardner’s S. 3119, “the Reg Act.”  This legislation would address both government spending and regulatory burdens.  When the U.S. debt ceiling is either increased of suspended, this legislation would:

• Require all federal agencies to identify each “major rule” (i.e. those rules costing the economy $100 million or more each year); and,
• Require agencies to submit a list of major rules to the Senate Budget Committee with recommendations for eliminating at least one rule and reducing the cost of that agency’s budget by 15% over 10 years.

The Colorado Chamber will continue to focus on addressing regulatory overreach – particularly in labor and workforce issues, financial sectors, manufacturing, energy and environment.

“If Washington doesn’t get serious and change how regulations are written, by giving those most affected a seat at the table, the road to the American dream could end up being a dead end. Small business owners and employees rarely get to play a part in assessing the rules that govern the “system,” and therefore, they often have the hardest time keeping up with Washington’s aggressive regulatory pace.”  — Jay Timmons, NAM President

The Colorado Chamber will continue to focus on addressing regulatory overreach – particularly in labor and workforce issues, financial sectors, manufacturing, energy and environment.

“If Washington doesn’t get serious and change how regulations are written, by giving those most affected a seat at the table, the road to the American dream could end up being a dead end. Small business owners and employees rarely get to play a part in assessing the rules that govern the “system,” and therefore, they often have the hardest time keeping up with Washington’s aggressive regulatory pace.”  — Jay Timmons, NAM President

Ex-Im Bank

The Colorado Chamber supports a full, long-term reauthorization of the Export-Import Bank and substantial increases in its lending authority.  The Colorado Chamber successfully lobbied our Congressional delegation for support of Ex-Im program reauthorization through 2019.

The Ex-Im Bank allows U.S. exporters to compete on a level playing field in a commercial market. Take a closer look at The Colorado Chamber’s letter to Congress in March and May of 2015, June 2014, as well as The Colorado Chamber’s op-ed in the Denver Post.

The Colorado Chamber continues to push for a Senate Banking Committee confirmation of proposed Ex-Im Bank Board members so a quorum can be reached and lending over $1 million can proceed.  The Ex-Im Bank Board does not currently have a quorum. Ex-Im Bank allows Colorado companies to compete more effectively in other markets, as well as to attract business to Colorado.