In a quiet release two days before Thanksgiving, federal agencies issued their fall 2013 unified agendas and regulatory plans. The unified agendas, published twice a year, provide a roadmap of agency activity for the coming months, and highlight what proposed and final rules are imminent. The regulatory plans, published in conjunction with the fall agendas, provide additional details about the most significant actions the agencies plan to undertake in the coming year, and identify agency priorities. The following summarizes the key regulatory measures that the Department of Labor (DOL), Equal Employment Opportunity Commission (EEOC), National Labor Relations Board (NLRB) and Department of Health and Human Services (HHS) consider priorities for 2014.
Department of Labor
According to the DOL’s Fall 2013 Agency Rule Liist,1 the agency has either recently issued or is ready to publish 24 final rules in the months ahead. In addition, the DOL is working on 31 rules at the proposed stage, 11 regulatory measures in the pre-rule category, and six long-term regulatory efforts. According to the DOL’s Statement of Regulatory Priorities,2 the agency plans to continue initiatives related to its Plan/Prevent/Protect, openness and transparency, risk reduction, and regulatory review and burden reduction goals.
The DOL’s Plan/Prevent/Protect initiative, first articulated in its spring2010 regulatory agenda, is designed to:
[shift] the burden of ensuring compliance from the Department - which cannot and does not want to inspect every workplace - to the regulated entity itself. Employers, unions, and others who follow the Department's Plan/Prevent/Protect strategy will assure compliance with employment laws before Labor Department enforcement personnel ever have to arrive at their doorsteps. Most important, rules published under this strategy will continue to assure that workers get the safe, healthy, diverse, family-friendly, and fair workplaces they deserve.
To this end, the DOL will focus its energy and resources on the following efforts:
Occupational Safety and Health Administration (OSHA)
As discussed in the Statement of Regulatory Priorities, OSHA is considering the following in the upcoming months:
- Infectious Disease Standards. Although this effort is at the pre-rule stage, OSHA is looking to development regulations to reduce the risk of worker exposure to infectious diseases, particularly in healthcare settings. Such settings include small private practices, hospitals, nursing homes, free-standing surgical and outpatient centers, emergency care clinics, patients' homes, and pre-hospitalization emergency care settings. The agency is reportedly concerned “with the movement of healthcare delivery from the traditional hospital setting, with its greater infrastructure and resources to effectively implement infection control measures, into more diverse and smaller workplace settings with less infrastructure and fewer resources, but with an expanding worker population.” OSHA plans to initiate Small Business Regulatory Enforcement Fairness Act (SBREFA) consideration of such a proposal in January 2014.
- Injury and Illness Prevention Program (I2P2). By September 2014, OSHA plans to issue a proposed rule requiring employers to implement an Injury and Illness Prevention Program. Such a program “involves planning, implementing, evaluating, and improving processes and activities that promote worker safety and health hazards.”
- Electronic Recordkeeping. OSHA recently issued a proposal that would require employers to electronically file certain injury and illness data, and make such information publicly available. The public comment period on this proposed rule ends in February 2014.
- Whistleblower Protection Regulations. OSHA is the federal agency charged with enforcing the whistleblower provisions of 22 separate statutes. The Fall 2013 Regulatory Agenda lists upcoming final rules “that will establish consistent and transparent procedures for the filing of whistleblower complaints” under the following statutes: Section 1558 of the Affordable Care Act of 2010; Section 806 of the Corporate and Criminal Fraud Accountability Act of 2002; National Transit Systems Security Act; Surface Transportation Assistance Act; Federal Railroad Safety Act; Consumer Financial Protection Act; Seaman's Protection Act; FDA Food Safety Modernization Act; and the Employee Protection Provision of the Moving Ahead for Progress in the 21st Century Act. According to OSHA, these rules will address enforcement, provide specific timeframes and guidance for filing a whistleblower complaint, avenues of appeal, and allowable remedies.
- Other Safety Standards. OSHA intends to proceed with proposals governing occupational exposure to crystalline silica, beryllium, and combustible dust. The agency already issued a proposed rule creating standards for exposure to crystalline silica. The comment period on that proposal ends in January 2014. OSHA plans to issue a proposed rule regulating occupational exposure to beryllium in April 2014. Also in April, the agency intends to initiate SBREFA review on a combustible dust standard.
- Musculoskeletal Disorders. While not a priority, OSHA has not eliminated its long-term goal to restore a column to the OSHA 300 Log for employers to record injuries related to musculoskeletal disorders (MSDs). The last recorded action on this proposal was in 2011. Any additional movement on a proposed MSD recordkeeping requirement has not been scheduled.
Office of Labor Management Standards (OLMS)
- Persuader Rule. Notably, the DOL’s Office of Labor-Management Standards (OLMS) has pushed off the release of its contentious “persuader” rule until March 2014. This rule, if it resembles the proposal, would broaden the scope of reportable activities by substantially narrowing the DOL’s interpretation of the "advice exemption" in Section 203(c) of the LMRDA. This final rule would greatly expand the types of union-related activities that would trigger reporting requirements, including, for example, multi-employer seminars or webinars, and could have a drastic impact on the confidential nature of the attorney/client relationship. Moreover, many small employers without in-house counsel to assist with the LMRDA’s reporting requirements would be placed at a disadvantage. It remains to be seen how closely the final version of the rule resembles the proposal. The final rule was slated for release this month, but during a recent meeting conducted by the U.S. Chamber of Commerce, Labor Secretary Perez explained that the final rule’s unveiling would be postponed until he could provide a thorough review of the many public comments submitted in response to the proposed rule.
- Consultant Form LM-21 Receipts and Disbursements Report. By October 2014, the OLMS intends to issue a proposed rule that would require employers to file electronically Form LM-21, Receipts and Disbursements Report, which is required under 203(b) of the LMRDA.
Office of Federal Contract Compliance Programs (OFCCP)
The OFCCP made waves this year when it issued final rules revising affirmative action regulations for protected veterans and individuals with disabilities.3 Additional priorities for the coming year are as follows:
- Construction Contractor Affirmative Action Requirements. By April 2014, the OFCCP intends to issue yet another affirmative action rule, this one applicable to construction contractors. According to the agency, existing affirmative action goals and timetables for this industry are outdated. Specifically, existing minority goals for construction were issued in 1980 based on 1970 census data; goals for the utilization of women in construction occupations were issued in 1978, and also based on 1970 census data. An updated rule would “remove these outdated goals and provide contractors increased flexibility to assess their workforce and determine whether disparities in the utilization of women or the utilization of a particular racial or ethnic group in an on-site construction job group exist,” and “strengthen affirmative action programs particularly in the areas of recruitment, training, and apprenticeships.”
- Sex Discrimination Guidelines. By May 2014, the OFCCP plans to issue proposed rules that would revise sex discrimination guidelines for federal contractors and subcontractors. According to the agency, because current sex discrimination guidelines have not been updated in more than 30 years, they warrant a "regulatory lookback." The proposed rule will “create sex discrimination regulations that reflect the current state of the law in this area.”
- Compensation Data Collection Tool. While not included as a priority item, the OFCCP is scheduled to develop a new compensation data collection tool that would to identify contractors likely to engage in sex- and race-based compensation discrimination. This tool is slated to be issued in January 2014. The OFCCP claims that this data collection tool “could play a key role in OFCCP's establishment-specific, contractor-wide, and industry-wide analyses.”
Employee Benefits Security Administration (EBSA)
The Affordable Care Act (ACA) has kept the EBSA busy in recent years. The upcoming fiscal year is no exception. In addition to the ACA, however, the EBSA’s regulatory plate is full with measures related to employee retirement plans. Rules of note include the following:
- Affordable Care Act. By February 2014, the EBSA is scheduled to release a final rule regarding the 90-day waiting period limitation and other technical amendments regarding health coverage requirements under the ACA.
- Definition of “Fiduciary”. By August 2014, the EBSA plans to take a second shot at revising who constitutes a “fiduciary” when providing investment advice to retirement plans and other employee benefit plans, to participants and beneficiaries of such plans, and to owners of individual retirement accounts (IRAs) under ERISA. The EBSA withdrew its initial fiduciary rule in 2011 after the proposal faced significant opposition.
- Other Final Rules. The EBSA intends to issue final rules governing annual funding notices (March 2014); target date disclosures (March 2014), and amendment of its abandoned plan program (April 2014) in the coming months as well.
Wage and Hour Division (WHD)
- Definition of “Spouse” under FMLA. In light of the Supreme Court’s decision in United States v. Windsor, the WHD intends, by March 2014, to revise its definition of “spouse” under the Family Medical Leave Act (FMLA).
- Right to Know. A WHD long-term initiative is to “update the recordkeeping regulations under the Fair Labor Standards Act 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.” While the WHD does not set a date for movement on this proposal, the agency recently sent a proposed Worker Classification Survey to the Office of Management and Budget (OMB) for review and approval, which many believe will be used to justify the need for a right-to-know rule.4
Equal Employment Opportunity Commission
Three of the seven items on the EEOC’s agenda5 address federal-sector employment, and another three focus on making joint regulations with other federal agencies more consistent. The one final rule the EEOC plans to issue relates to notice posting penalties. Specifically, by September 2014, the EEOC is scheduled to issue a final rule adjusting for inflation the civil monetary penalty for violation of EEO notice posting requirements under title VII of the Civil Rights Act, the Americans with Disabilities Act, and the Genetic Information Nondiscrimination Act. The rule would not affect notice posting violations under the Age Discrimination in Employment Act or the Equal Pay Act because those statutes do not impose civil monetary penalties for notice posting violations.
National Labor Relations Board
The only regulatory item on the NLRB’s agenda is a long-term rule that would revise the Board’s representation election process.6 Initially introduced in June 2011, the NLRB’s “ambush election” rule7 would make significant changes to pre- and post- union election procedures. A pared-down version8 of the proposed rule was finalized in December 2011, and eventually stayed due to litigation finding the rule invalid.9 Now that the NLRB is at full operating capacity, it is believed that renewed consideration of the rule is not far behind, although the NLRB’s agenda does not set a date.
Health and Human Services (HHS)
According to the HHS’s Fall 2013 Agency Statements of Regulatory Priorities,10 the agency plans to continue implementing the various ACA provisions, particularly as the insurance marketplaces start operating.
By August 2014, the HHS intends to issue a proposed rule regarding the ACA’s nondiscrimination provisions. This proposal would “implement prohibitions against discrimination on the basis of race, color, national origin, sex, age, and disability, as provided in section 1557 of the Affordable Care Act. Section 1557 provides protection from discrimination in health programs and activities of covered entities.”
While many of these agency goals are aspirational, they do provide a rough estimate of when these rules will be issued, and where the agencies will focus their resources over the coming months. Employers are advised to pay close attention to the requirements of final rules to ensure compliance. In addition, it is worthwhile to review proposed regulations when published in order to provide agencies with input before the rules become final.
1 DOL, Fall 2013 Agency Rule List, available here.
2 DOL, Fall 2013 Statement of Regulatory Priorities, available here.
3 See Joshua Roffman, OFCCP's Veterans' and Individuals with Disabilities' Final Regulations Impose New Obligations on Federal Contractors and Subcontractors, Littler ASAP (Sept. 9, 2013), available here.
4 See Ilyse Schuman, Senators Introduce Bill Targeting Independent Contractor Misclassification; DOL Forges Ahead with Classification Survey, DC Employment Law Update (Nov. 13, 2013), available here.
5 EEOC, Agency Rule List - Fall 2013, available here.
6 NLRB, Representation--Case Procedures , RIN 3142-AA08, available here.
7 76 Fed. Reg. 36,811-36,847 (June 22, 2011).
8 76 Fed. Reg. 80,137-80,189 (Dec. 22, 2011). See also David Kadela, Two-Member NLRB Majority Adopts Unprecedented Resolution to Move Forward With Subset of Election Rule Amendments, Littler ASAP (Dec. 5, 2011), available here.
9 In U.S. Chamber of Commerce v. NLRB, Civil Action No. 11-2262 (D.D.C. May 14, 2012), the U.S. District Court for the District of Columbia held the NLRB rule invalid for lack of a quorum. Following this decision, the Board decided to stay the enforcement of the rule.
10 HHS, Fall 2013 Agency Statements of Regulatory Priorities, available here.