Spring Regulatory Agenda Provides Roadmap to Anticipated Federal Rulemaking

On June 21, 2022, the Biden administration released its Spring 2022 Unified Agenda of Regulatory and Deregulatory Actions.  These semi-annual regulatory agendas outline federal agency goals for the months ahead. Although the schedule for agency rulemaking in these agendas tend to be aspirational, they do provide insight into the administration’s upcoming activities and priorities.

Given President Biden’s declaration to be the “most pro-union President in American history,” the Department of Labor (DOL) has spent much of its time reversing Trump-era policies.  The National Labor Relations Board and its general counsel, Jennifer Abruzzo, have followed suit.  According to the administration’s planned regulatory actions for 2022, we anticipate that this trend will continue.  The labor and employment highlights are listed below:

Wage and Hour Division (WHD)

  • Overtime Rule / White Collar Exemptions. The WHD is currently reviewing the overtime regulations, which implement the exemption of bona fide executive, administrative, and professional employees from the Fair Labor Standards Act’s minimum wage and overtime requirements.  The Department provided notice of its intent to consider changes to the overtime regulations in last fall’s regulatory agenda but has not specified what changes it is considering.  The Department has held several industry stakeholder calls to gather information and has, more recently, been conducting regional listening sessions around the country with the regulated community.  A Notice of Proposed Rulemaking (NPRM) is scheduled for October 2022. 
  • Davis-Bacon. On March 18, 2022, the Department published an NPRM indicating its intent to undo most of the 1982 modifications made by the Reagan administration, while at the same time making more than 50 significant changes to Davis-Bacon Act (DBA) enforcement.  DOL indicates that its DBA regulations affect work totaling more than $200 billion annually involving more than 1.2 million construction workers. Public comments on the proposed rule were due on May 17, 2022.  Many government construction contractors and industry groups filed comments expressing concern that the Department’s proposed return to policies of the 1970s will result in inflated wage rates that are inconsistent with the DBA and will exacerbate the current inflation of in the U.S. economy. The Department plans to issue a final rule in December 2022.   

Occupational Safety and Health Administration (OSHA)

  • Lock-Out/Tag-Out Update. New computer-based controls of hazardous energy conflict with current OSHA standards on lock-out/tag-out. In May 2019, OSHA issued a Request for Information to better understand new technology in this space. An NPRM is scheduled for March 2023.
  • Workplace Violence in Health Care and Social Assistance. OSHA published a Request for Information (RFI) in December 2016, soliciting information primarily from health care employers, workers and other subject matter experts on impacts of violence, prevention strategies, and other information useful to the agency. A broad coalition of labor unions and the National Nurses United each petitioned OSHA for a standard preventing workplace violence in health care.  In January 2017, OSHA granted the petitions.  In an effort to develop a workplace standard, OSHA is preparing to initiate the requirements of the Small Business Regulatory Enforcement Fairness Act (SBREFA) in September 2022.
  • Heat Illness Prevention in Outdoor and Indoor Work Settings. OSHA published an advance notice of proposed rulemaking (ANPRM) on October 27, 2021, to explore rulemaking on a heat stress standard. To date, California, Washington, Minnesota, and the U.S. military have issued heat protections. In recent years, Pulbic Citizen, a nonproift consumer advocacy organization, has petitioned OSHA to issue a heat stress standard. The agency is  still considering these petitions. OSHA is scheduled to analyze the comments from the ANPRM beginning June 2022.
  • Infectious Disease. OSHA is looking at regulatory alternatives for control measures to protect employees from infectious disease exposure. Affected workplaces could include health care, correctional facilities, laboratories, and homes shelters, among others.  An NPRM is scheduled for May 2023.
  • Tracking Workplace Injuries and Illnesses. OSHA recently extended a comment period to June 30, 2022 for a proposed rule on tracking workplace injuries and illnesses. The rule would require establishments with 100 or more employees in designated industries to submit information electronically once a year on certain OSHA forms. The rule would update the classifications system to determine the industries covered by this submission requirement and require the company name to be included. A final rule is scheduled for December 2022.

National Labor Relations Board

  • Joint Employer. The Board expects to “engage in rulemaking on the standard for determining whether two employers, as defined in Section 2(2) of the National Labor Relations Act (Act), are a joint employer under the Act.”  The Board plans to issue an NPRM in September 2022.  We expect the Board will either amend or rescind the current “direct and immediate” standard and replace it with a broader standard that would expand joint employment liability.   
  • Election Protection Rule. The Board will be “revising the representation election procedures located at 29 CFR part 103, with a focus on the amendments issued on April 1, 2020.”  In that proposal, the Board’s Republican majority amended policies relating to blocking charges, the voluntary recognition bar, and the contract bar, which is specific to the construction industry. The Board plans to issue an NPRM in September 2022.  

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.