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.
The Trump administration's Unified Agenda of Regulatory and Deregulatory Actions ("regulatory agenda"), released on December 14, 2017, indicates agencies are taking a hard look at existing rules, and treading lightly with new ones. The fall regulatory agenda outlines each agency's rulemaking efforts at any stage in the process—from requests for information to final regulations—and gives estimated timelines for completion. This information provides insight into an agency's priorities and what employers can expect in the coming months.
The fall regulatory agenda shows federal agencies are taking to heart two executive orders issued in the first few weeks of the new administration. In January, President Trump issued Executive Order 13771: Reducing Regulation and Controlling Regulatory Costs, which requires agencies to eliminate two rules for every new one issued. A month later, the president issued Executive Order 13777: Enforcing the Regulatory Reform Agenda, which calls for each federal agency to develop a regulatory reform task force to identify burdensome regulations for possible repeal, replacement, or modification. As a result, the agencies charged with implementing and enforcing labor and employment laws intend to review and either rescind or revise a number of rules drafted during the previous administration.
Notably, the Department of Labor's Wage and Hour Administration will propose an updated salary level for the overtime exemption for executive, administrative and professional employees. The WHD estimates that a notice of proposed rulemaking on this issue will be published in October 2018.
Several rules drafted by the Occupational Safety and Health Administration (OSHA) during the Obama administration are also subject to revision. For example, OSHA is seeking additional comments about its new standard governing occupational exposure to beryllium in certain industries. The agency also intends to issue, soon, a proposed rule to reconsider, revise, or remove provisions of its Improve Tracking of Workplace Injuries and Illnesses final rule, particularly as it relates to employee privacy.
Although many regulations on the agency rule list are being reconsidered, a few new proposals are in the works. Within the month, the DOL's Employee Benefits Security Administration (EBSA) is scheduled to issue a notice of proposed rulemaking to establish criteria for an employer group or association to act as an "employer" within the meaning of section 3(5) of ERISA and sponsor an association health plan (AHP) that qualifies as an employee welfare benefit plan and a group health plan under Title I of ERISA. This regulatory action is the result of Executive Order 13813: Promoting Healthcare Choice and Competition Across the United States, which directed the DOL to issue proposed regulations or guidance allowing more employers to form AHPs. The order specifically references broadening the interpretation of the conditions that satisfy the commonality-of-interest requirements with respect to the definition of an "employer" under ERISA. The goal of this broader interpretation is to allow trade associations, for example, to offer health insurance to employees of member companies.
On June 15, the president signed Executive Order 13801: Expanding Apprenticeships in America. This order declares:
It shall be the policy of the Federal Government to provide more affordable pathways to secure, high paying jobs by promoting apprenticeships and effective workforce development programs, while easing the regulatory burden on such programs and reducing or eliminating taxpayer support for ineffective workforce development programs.
To that end, the DOL's Employment and Training Administration (ETA) will propose regulations "to establish the framework for industry-recognized apprenticeship programs, a new industry-led initiative to promote innovation and opportunity in apprenticeship, and integrate this initiative with the existing Registered Apprenticeship system." The regulatory agenda indicates this proposed rule will be issued during January 2018.
A complete list of the items on the DOL's regulatory agenda can be found here.
Discrimination and Wellness
In its statement of regulatory priorities, the Equal Employment Opportunity Commission noted that by the end of January 2018, it will issue a proposed rule to revise its procedural regulations under Title VII, the ADA, GINA, and the ADEA "to allow for electronic transmissions, to clarify the deferral process to state and local agencies, to update no cause determination procedures."
In addition, the EEOC will take a second look at its wellness regulations in light of the ruling of the U.S. District Court for the District of Columbia in AARP v. EEOC, in which the court invalidated, but did not vacate, the EEOC’s final regulations on the operation of voluntary wellness programs under the ADA and GINA. Proposed changes to these wellness regulations are expected in August 2018. Other items on the EEOC's regulatory agenda can be found here.
The U.S. Citizenship and Immigration Services (USCIS) considers changes to the H-1B nonimmigrant program and petitioning process regulations a priority for 2018. According to the agency:
In order to improve U.S. worker protections as well as to address the requirements of Executive Order 13788, Buy American and Hire American, USCIS proposes to issue regulations with the focus of improving the H-1B nonimmigrant program and petitioning process. Such initiatives include a proposed rule that would establish an electronic registration program for H-1B petitions subject to annual numerical limitations and would improve the H-1B numerical limitation allocation process . . . . and a proposed rule that would revise the definition of specialty occupation to increase focus on truly obtaining the best and brightest foreign nationals via the H-1B program and would revise the definition of employment and employer-employee relationship to help better protect U.S. workers and wages.
A proposed rule on the registration requirement is slated for February 2018. Proposed changes to revise the definition of specialty occupation are scheduled for an October 2018 release. Other immigration-related rulemaking can be found here.
The timelines in the regulatory agenda are estimates, so it is possible a rule could be issued before or after the listed date. We will continue to monitor federal agency activity and report on significant developments.