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.
Although this election season may feel endless, there are only six more months until voters decide the next president and members of Congress. Within this window, federal agencies are scrambling to finalize rules before the next administration takes hold. Since the first of the year, the Department of Labor and the Equal Employment Opportunity Commission have issued over 20 final rules, including those governing the white collar overtime exemptions, electronic publication of workplace injuries and illnesses, employee wellness plans, conflict of interest retirement plan advice, occupational exposure to respirable crystalline silica, reportable "persuader" activities, and various whistleblower protections. The finalization of these major rules leaves the spring regulatory agenda, published on May 18, 2016, relatively free of any surprises. The spring edition of the semi-annual list of agency rulemaking activity does, however, indicate that a few remaining controversial rules will be issued in the coming months.
A final rule implementing the Fair Pay and Safe Workplaces Executive Order (EO) 13673, otherwise known as the "blacklisting" rule, is scheduled to be issued in August 2016. Last May, the Federal Acquisition Regulatory (FAR) Council published a proposed rule to implement this EO. At the same time, the DOL published separate guidance. Both documents would impose new and onerous obligations on government contractors, and greatly increase the risks of doing business with the federal government. Among other requirements, the proposal would mandate that employers bidding on federal contracts for goods and services (including construction) worth more than $500,000 must disclose violations of 14 federal labor laws and their state law equivalents that occurred in the past three years. Senior agency officials would work with contract compliance officers to determine whether the contractors' actions "rise to the level of a lack of integrity or business ethics," which would disqualify them from the contracting process. Notably, the proposal would require contractors to report many types of administrative determinations regarding potential violations that are not necessarily final, therefore depriving contractors of their rights to due process if such reports support denying the contractor's bid. Contractors are eagerly waiting to see whether the myriad problems with the proposed rule are remedied in the final version.
Federal contractors are also eyeing the DOL's regulatory agenda, as the Department is slated to issue its final rule on paid sick leave for covered federal contractors by September 2016. President Obama signed EO 13706, Establishing Paid Sick Leave for Federal Contractors, on September 7, 2015. This EO will allow employees of covered federal contractors the ability to earn up to seven days of paid sick leave per year, and can use this leave (1) for an employee’s own illness, injury, medical condition or when an employee must obtain diagnosis, care, or preventive care; (2) to care for a child, parent, spouse, domestic partner, or “any other individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship” with an illness, injury, medical condition, or who needs to obtain diagnosis, care, or preventive care; (3) for domestic violence, assault, or stalking situations resulting in an illness, injury or medical condition or the need for obtaining diagnosis, care, or preventive care; or (4) to obtain additional counseling, seek relocation, seek assistance from a victim services organization, take related legal action for the employee or one of the above-listed individuals in domestic violence, assault or stalking situations. The DOL must issue a final rule to enforce the EO's provisions by September.
A final rule from the Office of Federal Contract Compliance Programs (OFCCP) is imminent. New regulations revising the agency's sex discrimination guidelines are slated for a May 2016 release. According to the OFCCP, current guidance "is more than 30 years old, and warrants changes that align OFCCP's requirements with current law and better address the realities of today's workplaces."
The Occupational Safety and Health Administration (OSHA), which is charged with enforcing the whistleblower provisions of 22 separate statutes, intends to issue a final rule establishing procedures for handling retaliation complaints under section 1558 of the Affordable Care Act by November 2016.
The DOL's regulatory agenda indicates the DOL is working on 22 proposed rules. These include the Office of Labor Management Standards' (OLMS) proposed rule revising the Consultant Form LM-21, Receipts and Disbursements Report. The OLMS recently issued its final rule that will require employers to file public reports with the DOL when they use consultants (including lawyers) to provide labor relations advice and services that have the purpose of persuading employees regarding union organizing or collective bargaining. Form LM-21 requires the consultant to report the names and addresses of all employers for whom the consultant provided labor relations advice or service "regardless of the purpose of the advice or service," and all receipts and disbursements from those employers for those services. The OLMS indicates this proposed rule will be published in September 2016.
Another notable proposed rule that has been in the works for years is a proposed standard for infectious diseases. Recent disease-related health scares, including those related to Ebola and the Zika virus, have brought this issue to the forefront. OSHA plans to issue a notice of proposed rulemaking on infectious diseases by March 2017.
By August 2016, the OFCCP plans to issue a proposed rule to revise construction contractors' affirmative action requirements.
Several items are at the nascent regulatory stage. The DOL has been requesting information, holding public meetings, and doing the background work to prepare for issuing proposed rules on 24 items, according to the regulatory agenda. The Wage and Hour Division is still considering how an overtime-eligible employee's use of electronic devices outside of regularly-scheduled work hours affects employment. The belief is that the WHD will want to eventually issue a rule determining whether such use constitutes compensable work time. The agency intends to issue by July 2016 a request for information (RFI) "to gather information about employees’ use of electronic devices to perform work outside of regularly scheduled work hours and away from the workplace, as well as information regarding 'last minute' scheduling practices being utilized by some employers that are made possible in large part by employees’ use of these devices."
By November of this year, OSHA intends to publish its own RFI to gather information on workplace violence in healthcare settings. According to information provided in the agenda, OSHA's RFI will solicit information "primarily from health care employers, workers and other subject matter experts on impacts of violence, prevention strategies, and other information that will be useful to the Agency if it decides to move forward in rulemaking. OSHA will also solicit information from stakeholders, including state officials, employers and workers, in the nine states that require certain health healthcare facilities to have some type of workplace violence prevention program."
Several items continue to languish on the DOL's regulatory backburner. Seventeen rules have been relegated to the "long-term" agenda, meaning the agency plans to take no action on these items within the next year, if ever. Perpetual long-term items include the proposal to add a musculoskeletal disorders column to OSHA's injury and illness log; the Wage and Hour Division's "right to know" regulations under the Fair Labor Standards Act, which would require employers to disclose to workers their status as an employee or independent contractor, and if an employee, how their pay is computed; and a requirement that employers establish injury and illness prevention plans. New to this list is the OFCCP's proposal to create a compensation data collection tool. This proposal was likely scrapped once the EEOC decided to revise its EEO-1 form to collect additional compensation information from employers, effectively achieving the same end.
Rulemaking target dates in the regulatory agendas are usually aspirational. However, given the looming elections, agencies have every incentive to adhere to their deadlines. With only eight months remaining in the Obama Administration, the agencies face a very tight timeframe in which to complete their agendas. Moreover, any rules finalized later this year face the potential of being overturned under the Congressional Review Act. Even so, the agencies appear committed to advancing as many of their workplace policy priorities as possible before the next administration takes over. Employers should therefore expect the major final rules that are still outstanding to hit the Federal Register within the next few months.