Some Federal Agency Rules Delayed, Others Imminent, According to Newly Released Fall Regulatory Plans

Federal agencies released their Fall 2014 Regulatory Plans and Unified Agendas on November 21, 2014, right as lawmakers left Washington for the Thanksgiving break. Agency agendas are released twice a year, detailing all rulemaking efforts at their various stages of development and implementation. The Regulatory Plan is published along with the fall edition of the agenda.  The Regulatory Plan identifies agency regulatory priorities and provides information about the significant regulatory actions that the agencies expect to take in the year ahead. According to the new plans and agendas, some contentious labor and employment regulations have been put on the back burner, while others are expected to be released in the coming months. While the target release dates of the agency regulations are often more aspirational than reality, they indicate which items are likely considered priorities. The following lists the agenda highlights by agency. 

National Labor Relations Board

Although the NLRB's representation rule, often referred to as the "quickie" election rule that would expedite the union election process, is listed only on the agency's "long-term" agenda list, many are expecting the Board to issue its final rule before the December 16, 2014 expiration of member Nancy Schiffer's term. Generally, items on the "long-term" are those under development but not expected to be acted upon within the next 12 months.

Department of Labor

According to the DOL's agency rule list and long-term list, the DOL has recently or intends to issue 23 final rules and 38 proposed rules within the year. The agency also lists 13 items at the pre-rule exploratory stage, and relegates 15 regulatory efforts to the "long-term" shelf. Notable regulations are discussed below. 

            Occupational Safety and Health Administration

OSHA once again dominated the regulatory rule list, with 26 active items under consideration. Of these 26 items, OSHA considers the following to be priorities: 

  • Regulations to limit exposure to crystalline silica.
  • Regulations to limit exposure to infectious diseases in healthcare and other related high-risk environments.
  • The issuance of a final rule to modify its reporting system for occupational injuries and illnesses. According to OSHA, "an updated and modernized reporting system would enable a more efficient and timely collection of data, and would improve the accuracy and availability of the relevant records and statistics." In essence, this proposal would require employers to submit their injury and illness survey data electronically, which would then be made publicly available. OSHA intends to issue this rule by August 2015.
  • OSHA is charged with implementing the whistleblower provisions in 22 separate statutes. To this end, the agency intends to issue final rules under the National Transit Systems Security Act; Surface Transportation Assistance Act; and Federal Railroad Safety Act by February 2015; under Section 806 of the Corporate and Criminal Fraud Accountability Act of 2002, as Amended, by June 2015; the Consumer Financial Protection Act by December 2014; the Seaman's Protection Act by December 2014; the FDA Food Safety Modernization Act by May 2015; and under Section 1558 of the Affordable Care Act of 2010 by April 2015; and issue an interim final rule for the Employee Protection Provision of the Moving Ahead for Progress in the 21st Century Act by February 2015. 

Five OSHA rulemaking efforts are now on the long-term actions list, including proposed revisions to the Hazard Communication Standard; the development of a rule requiring employers to implement an Injury and Illness Prevention Program ("I2P2"); the development of a combustible dust standard; including a musculoskeletal disorders (MSD) column on the injury and illness reporting form; and the development of a rule to prevent backover injuries and fatalities.  The proposals to regulate combustible dust and backover injuries and fatalities are scheduled to move in 2016; the others have a "to be determined" action date, meaning they are less likely to advance in the near term. 

            Wage and Hour Division

As discussed more thoroughly in the DOL's Fall 2014 Statement of Regulatory Priorities, by the first quarter of 2015 the WHD will issue its proposed revisions to the Fair Labor Standards Act's (FLSA's) overtime exemptions. A March 2013 Presidential Memorandum directed the Labor Secretary "to modernize and streamline" the existing overtime regulations for "white collar" employees. Originally slated for a fall 2014 release, the "Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales, and Computer Employees" proposed rule now has a February 2015 expected issuance date. 

Also considered a regulatory priority, a final rule revising the definition of "spouse" in the Family and Medical Leave Act (FMLA) in light of the U.S. Supreme Court's decision in United States v. Windsor is expected to be issued by March 2015. 

Still languishing on the WHD's long-term list is the "right-to-know" rule that would update 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." Given the other regulatory priorities for the agency, this rulemaking effort is not expected to move anytime soon. However, a component of the “right-to-know” rule was included in the Fair Pay and Safe Workplaces Executive Order. The Federal Acquisition Regulation (FAR) proposed rule implementing the Executive Order is scheduled for release in January 2015. 

            Office of Federal Contract Compliance Program

By August 2015, the OFCCP plans to issue a final rule requiring federal contractors and subcontractors to submit summary data on the compensation paid to their employees. According to the OFCCP, the compensation data collection "will enable OFCCP to direct its enforcement resources toward Federal contractors whose summary data indicate potential pay disparities, while reducing the likelihood of reviewing companies that are in compliance with anti-discrimination laws."

A month later, the OFCCP is scheduled to issue a final rule implementing the April 8, 2014 Executive Order 13665 prohibiting discrimination by federal contractors and subcontractors against certain of their employees for disclosing compensation information, otherwise known as the "transparency" rule. 

By the end of this year, the OFCCP says it will issue a proposed rule to update its sex discrimination guidelines, which, the agency claims, are outdated and therefore warrant a "regulatory lookback." 

Still on the agency's active rule list is a proposal to amend construction contractors' affirmative action requirements, scheduled for a September 2015 release. 

A final rule implementing Executive Order 13672, which will ensure that federal contractors do not engage in hiring or employment discrimination based on sexual orientation or gender identity, is imminent. 

            Office of Labor Management Standards

Still on the OLMS's list, but continually delayed, is the controversial "persuader" regulations that would both broaden the types of activities that trigger reporting requirements under the Labor-Management Reporting and Disclosure Act, and narrow those who are currently exempt. A final rule has a July 2015 release date, and is listed in the OLMS's statement of regulatory priorities. A proposed rule amending Consultant Form LM-21, Receipts and Disbursements Report, is also slated to be issued in July of next year. 

            Employee Benefits Security Administration

The EBSA has 13 items on its upcoming agenda. Among its stated priorities is a proposed rule – scheduled to be issued in January 2015 – that would clarify the circumstances under which a person will be considered a "fiduciary" when providing investment advice related to retirement plans, individual retirement accounts, and other employee benefit plans, and to participants, beneficiaries, and owners of such plans and accounts. This controversial rule has been issued and withdrawn in recent years, so it will be interesting to see if the agency addressed concerns raised by the earlier versions of the rule. 

At the pre-rule stage the agency is conducting a review of the use of brokerage windows in participant-directed individual account retirement plans covered by the Employee Retirement Income Security Act of 1974 (ERISA) to determine whether regulatory guidance is needed.  

The agency is poised to issue a final rule implementing the requirement of Section 501 of the Pension Protection Act of 2006 (PPA), which amended section 101(f) of ERISA, to require the administrator of a defined benefit pension plan to provide participants, beneficiaries, and other parties with an annual funding notice. The rule will also implement the requirements of Section 503(c) of the PPA that amended section 104(b)(3) of ERISA regarding summary annual reports for defined benefit plans.  

A separate proposal on pension benefits statements is scheduled to be issued by July 2015. 

Another regulatory priority for the EBSA is "to pursue initiatives to encourage the offering of lifetime annuities or similar lifetime benefit distribution options for participants and beneficiaries of defined contribution plans. EBSA is developing a proposal relating to the presentation of a participant's accrued benefits (account balance) as a lifetime income stream of payments." In addition, according to its statement of regulatory priorities, the EBSA will propose amendments to a safe harbor regulation "that will provide plan fiduciaries with more certainty that they have discharged their obligations under section 404(a)(1)(B) of ERISA in selecting an annuity plan provider and contract for benefit distributions from an individual account retirement plan." 

Finally, the EBSA intends to continue issuing guidance on the Affordable Care Act's implementation, often done in conjunction with the Departments of Health and Human Services and the Treasury. 

            Employment and Training Administration

The ETA is scheduled to soon issue a proposed rule governing the wage methodology for the temporary non-agricultural employment H-2B program.  The ETA sets the wage that employers must offer and pay foreign workers entering the country on an H-2B visa. The wage methodology had been revised in 2011, but litigation halted enforcement. According to the ETA, the agency "has determined that further notice and comment is appropriate on the proper methodology for determining the prevailing wage in the H-2B program, and will consider comments submitted in conjunction with the [interim final rule] together with comments submitted on this new proposal in order to issue a final rule." 

Equal Employment Opportunity Commission

Of the eight items on the EEOC's rule list, three apply to federal sector employment only. The other proposed rules touch upon employee wellness programs and discrimination complaint procedures. 

The conflict between the nondiscrimination provisions of the ADA and the Genetic Information Nondiscrimination Act (GINA) and the Affordable Care Act's promotion of employee wellness programs has left many employers questioning the legality of their own programs.  The EEOC has recently filed a handful of lawsuits based on employer wellness programs. According to the EEOC's rule list, by February 2015, the EEOC will issue a proposed rule to amend the ADA's regulations "to address the interaction between title I of the ADA and financial inducements and/or penalties as part of wellness programs offered through health plans. EEOC also plans to address other aspects of wellness programs that may be subject to the ADA's nondiscrimination provisions" in this proposal. 

Also by this date, the EEOC is slated to issue a proposed rule to modify regulations related to GINA "to address inducements to employees' spouses or other family members who respond to questions about their current or past medical conditions on health risk assessments," as well as correct a typographical error in the rule's discussion of wellness programs. 

On a more procedural note, the EEOC intends to clarify discrimination complaint procedures for entities receiving federal financial assistance. The EEOC has joint regulations with the Department of Justice (DOJ) explaining how federal agencies providing financial assistance should process disability-based employment discrimination complaints/charges involving employers subject to both title I of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act, and another joint regulation involving pay discrimination.  The EEOC will soon issue proposals to harmonize and clarify the complaint procedures in light of the EEOC/DOJ cooperative efforts. 

Similarly, the EEOC has a joint regulation with the DOL's Office of Federal Contract Compliance Programs to coordinate the processing of disability-based employment discrimination complaints/charges filed against employers holding government contracts or subcontracts. To this end, the EEOC will issue a similar proposal to harmonize/clarify the complaint procedures. 

Health and Human Services

The HHS has been in the spotlight since the Affordable Care Act was enacted four years ago. The HHS is the primary agency (often along with the Department of Labor's Employee Benefits Security Agency and the IRS) charged with drafting implementing ACA regulations. The current agenda, however, does not include many ACA-related rulemaking efforts. The HHS is scheduled to issue a proposed rule by April 2015 to implement the nondiscrimination provisions of the ACA. Section 1557 of the ACA prohibits discrimination on the basis of race, color, national origin, sex, age, and disability in health programs and activities of covered entities covered by the healthcare law. 

Also on the HIPAA front, the HHS plans to issue a proposed rule to require covered entities to treat as spouses the same-sex spouses of individuals "whose marriage is legally valid in the state where it was celebrated for purposes of recognizing such persons as personal representatives of the individual under the HIPAA Privacy Rule." The proposal is scheduled for a March 2015 release. 

The agency is also poised to issue a final rule in January 2015 that amends the Health Insurance Portability and Accountability Act of 1996 (HIPAA) Privacy Rule to expressly permit certain HIPAA covered entities to disclose to the National Instant Criminal Background Check System (NICS) the identities of individuals who are subject to a federal  "mental health prohibitor" that disqualifies them from possessing or receiving a firearm.  

In sum, the latest regulatory agenda reveals that the Administration is again turning to the agencies to push its workplace policy agenda. With the new makeup of the 114th Congress, these rulemaking efforts are likely to meet even more scrutiny by lawmakers.

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.