Labor and Employment Rulemaking Prominent in Spring 2020 Regulatory Agenda

The federal government recently released its unified federal regulatory agenda–the document that outlines regulatory and deregulatory actions agencies expect to take in coming months. Issues involving labor and employment featured prominently on the list.

Department of Labor.  The U.S. Department of Labor has far and away the most ambitious agenda in the labor and employment space.  With over 60 rules on the docket, the DOL has indicated it plans to continue to aggressively overhaul regulations on a host of issues, including the treatment of tips under the Fair Labor Standards Act (FLSA), how employer-provided lodging and board is treated under the FLSA, the affirmative action requirements for federal contractors, and a range of occupational safety and health standards. 

Perhaps most noteworthy—and appearing on the Department’s regulatory agenda for the first time—was notice that the DOL intends to publish proposed rules detailing how workers may be classified as employees or independent contractors under federal wage and hour laws.  As state legislatures have pressed efforts to restrict “independent contractor” status under their own wage and hour laws, a revision of the federal standard is likely to be inclined more favorably toward the use of the independent contractor model.  While the substance of the DOL’s proposed rule is not yet known, it is likely to be a contentious rulemaking, and may engender congressional opposition. Already, the U.S. House of Representatives has included in next year’s DOL funding bill a prohibition on the use of funds to enforce its “joint employer” regulation issued in January, and a similar prohibition on the NLRB enforcing its new joint employer rule. While it is unclear whether these funding limitations will ultimately be signed into law, they signal that opponents of agencies’ more controversial regulations will seek to use a range of tools to block them.

Equal Employment Opportunity Commission.  The EEOC’s regulatory agenda notes that the agency expects to publish long-awaited proposed regulations governing the incentives employers may provide to employees for participation in workplace wellness plans under the Americans with Disabilities Act and the Genetic Information Non-discrimination Act. The EEOC’s prior regulations were struck down by a federal court in August 2017.  The Commission voted to send revised proposed regulations to the Office of Management and Budget for clearance in June of this year; the regulatory agenda states that a Notice of Proposed Rulemaking is expected to be published this month.

The agency also indicated that it plans to publish a proposed rule in July addressing procedural regulations for the conciliation process, which require the Commission to attempt to resolve a charge where it has found cause to believe discrimination occurred, as well as a proposed rule defining “joint employment” under the Equal Pay Act.

National Labor Relations Board.  The NLRB also included a number of high-profile rules on its regulatory agenda, indicating that it would soon publish proposed rules dealing with election procedures and union access to an employer’s private property, as well as final rules detailing when students at institutes of higher education may be considered “employees” for purposes of the National Labor Relations Act (scheduled to be published in September 2020).  

The regulatory agenda is merely an aspirational document, and proposed deadlines often slip.  Agencies may also undertake regulatory and subregulatory efforts that are not proposed on the agenda.  Littler will continue to keep readers apprised of relevant developments.

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.