DOL and EEOC Release Semiannual Regulatory Agendas

According to the Department of Labor’s and Equal Opportunity Commission’s Spring 2011 Semiannual Regulatory Agendas, employers can expect significant new and continued rulemaking activity in the coming months.

Department of Labor

In addition to the labor-management and occupational safety and health regulatory initiatives the Department of Labor plans to undertake over the next 6 to 12 month, the agency’s complete semiannual regulatory agenda indicates that the Employee Benefits Security Administration (EBSA), Wage and Hour Division (WHD), and the Office of Federal Contract Compliance Programs (OFCCP) also plan to issue a number of final and proposed rules over the course of 2011. Some of the highlights of the approximately 80 rules at the pre-, proposed, long-term and final rule stages include the following:

 EBSA

By the end of 2011, the EBSA intends to issue a number of final rules related to employee pension plans. By the end of the summer, the agency plans to issue a final rule on ERISA’s prohibited transaction exemption that permits the provision of investment advice to participants or beneficiaries of certain individual account plans if the investment advice is provided under an “eligible investment advice arrangement.”

By the end of the year, the agency intends to issue a final rule implementing the requirement that the administrator of a defined benefit pension plan provide participants, beneficiaries, and other parties with an annual funding notice.

By November 2011, the EBSA plans to issue final rules that more broadly define who constitutes a plan “fiduciary” for the purposes of rendering investment advice and another final rule clarifying the procedures for filing and processing applications for administrative exemptions from the prohibited transaction provisions of ERISA. At the same time, the EBSA intends to issue yet another final rule designed to provide “more specificity to fiduciaries as to the investment information that must be disclosed in the required notice to participants and beneficiaries” and “enhance the information that must be disclosed concerning target date, or similar age-based, qualified default investment alternatives.”

Longer-term regulatory actions the EBSA plans to undertake include the finalizing of rules to address various provisions in the Affordable Care Act, including those related to the provision of dependent coverage for children to age 26, status as a grandfathered plan, coverage of preventative services, internal and external appeals procedures, and automatic enrollment in health plans for employees of large firms.

WHD

The WHD is expected to soon issue a final rule implementing Executive Order 13495, Nondisplacement of Qualified Workers Under Service Contracts, which requires that any federal service contracts and solicitations for such contracts include a clause requiring contractors and their subcontractors to offer existing employees the right of first refusal to take positions for which they are qualified under the new contract. A proposed rule implementing this Executive Order was issued in March 2010.

At the proposed rule stage, the WHD plans to issue a proposal by October 2011 that would apply the Fair Labor Standards Act (FLSA) to domestic service workers. Legislation was recently introduced in both chambers that would achieve the same goal. By September, the agency intends to issue a proposed rule amending the Family and Medical Leave Act (FMLA) to incorporate amendments made by the National Defense Authorization Act for FY 2010 and the Airline Flight Crew Technical Corrections Act.

By October 2011, the WHD also seeks to issue a proposed rule updating the recordkeeping regulations under the FLSA in order to “enhance the transparency and disclosure to workers of their status as the employer's employee or some other status, such as an independent contractor, and if an employee, how their pay is computed.” The long-awaited “Right To Know” rule is intended to “update the recordkeeping requirements to foster more openness and transparency in demonstrating employers' compliance with applicable requirements to their workers, to better ensure compliance by regulated entities, and to assist in enforcement.” In addition, the proposal will clarify that the mandatory manual preparation of “homeworker” handbooks applies only to employers of employees performing home work in the restricted industries.

OFCCP

The OFCCP has issued a proposed rule to revise the regulations implementing the nondiscrimination and affirmative action provisions of the Vietnam Era Veterans Readjustment Assistance Act. The OFCCP also is in the preliminary stages of developing “a new strategic compensation data collection tool that will effectively identify contractors that are likely to violate” Executive Order 11246, which prohibits discrimination in federal contracting. By August 2011, the agency plans to issue a proposal that would require federal contractors and subcontractors to conduct more substantive analyses of recruitment and placement of disabled workers and to revise their recordkeeping requirements under Section 503 of the Rehabilitation Act. By November 2011, the OFCCP plans to issue a proposed rule that would “strengthen and enhance the effectiveness of the affirmative action program requirements for federal and federally assisted construction contractors and subcontractors, particularly in the area of recruitment and job training.”

Finally, early in 2012, the OFCCP seeks to issue a proposed regulation to amend its sex discrimination guidelines.

OSHA

The Occupational Safety and Health Administration (OSHA) is developing a rule requiring employers to implement an Injury and Illness Prevention Program (I2P2). The I2P2 proposal involves planning, implementing, evaluating, and improving processes and activities that protect employee safety and health. OSHA has not provided a time for issuance of the proposed I2P2 rule. OSHA is also planning to restore a column to the OSHA 300 Log that employers must check if a case they are already required to record under OSHA's existing recordkeeping rule is a "musculoskeletal disorder" (MSD). The agency recently provided for a limited reopening of the rulemaking record and indicates that it is currently analyzing the record.

DOL Administration

On a more administrative level, the DOL’s Office Administrative Law Judges intends to issue a proposed rule by October 2011 that would harmonize administrative hearing procedures with the current Federal Rules of Civil Procedure “in order to best manage the complexities of whistleblower and discrimination claims.”

The DOL plans to host a series of web chats on its regulatory agenda next week.

EEOC

According to the Equal Employment Opportunity Commission’s semiannual regulatory agenda, by October 2011, the EEOC intends to issue a final rule clarifying the meaning of the “reasonable factors other than age” (RFOA) defense used against an Age Discrimination in Employment Act (ADEA) claim and the disparate impact burden of proof under the ADEA. In Smith v. City of Jackson, the U.S. Supreme Court held that disparate impact claims were cognizable under the ADEA, and that an employer could use RFOA as a defense against such a claim. To that end, in March 2008, the EEOC issued a notice of proposed rulemaking (NPRM) regarding disparate impact claims under the ADEA. In this NPRM, the EEOC asked whether more information was needed on the meaning of RFOA in this context. In light of the 2008 U.S. Supreme Court opinion in Meacham v. Knolls Atomic Power Lab, in which the Court held that the employer bears the burden of production and persuasion when using a RFOA defense in an ADEA case, and comments it received from its NPRM, the EEOC issued a new NPRM to address the scope of the RFOA defense in February 2010.

In addition, by the end of 2011, the agency intends to issue a proposed rule that would update its race and ethnicity data collection method to conform with current reporting instructions for the EEO-1 Report, making employee self-identification the preferred method for collecting race and ethnic data on employees.

Photo credit: Jostaphot

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.