Federal Labor and Employment Agencies Have a Busy Rulemaking Agenda. What Do Employers Need to Know?

Federal agencies had a quiet year in 2025, at least when it comes to rulemaking. But that will likely change in 2026: the U.S. Department of Labor (DOL), the Equal Employment Opportunity Commission (EEOC), and the National Labor Relations Board (NLRB) are all expected to propose significant rules. But what will these rules mean? Which ones will create new requirements? Which ones will provide guidance? And what steps will they go through before they’re final? 

This primer answers those questions. It puts rulemaking in context so employers can understand the process. It also walks through the most important steps, from the proposed rule to the final one. And importantly, it is intended to explain what employers can do, why they should consider taking such steps, and when. 

What are rules, exactly?

Generally, a “rule” is a standard or principle that applies to future conduct. It is typically published by a federal agency according to some authority the agency has been given by Congress. For example, the DOL has authority under the Fair Labor Standards Act to define certain exemptions from overtime and the minimum wage. The DOL sometimes uses that authority to set minimum salary levels for exempt employees. When it does that, it is setting out a broad standard that applies to future exemptions. It is therefore writing a rule. 

Within the “rule” category, there are several subcategories. The most important one is for “legislative” rules. These rules work like mini-statutes: they create legal requirements that people have to follow. If a person violates a legislative rule, they can be punished just as if they had violated a statute. So in a real sense, legislative rules are law (unless found by a court to have been outside the federal agency’s authority).

Other rules are considered “interpretive.” These rules don’t create law on their own. Instead, they set out the agency’s view of what the law is. They may still affect people’s behavior; businesses often key their compliance strategies to an agency’s interpretation. The rules aren’t “binding” in a formal sense, but they do represent the agency’s official view. 

Another subcategory is “general statements of policy.” Like interpretive rules, these statements aren’t “law”; a person can’t be punished for violating them. Instead, they lay out the agency’s plan for enforcing a statute. For example, they may set out the criteria an agency will use to trigger an investigation. Or they may list the kinds of cases the agency intends to prioritize for enforcement. That information is important, and it may affect how people conduct their business in real life. But it’s not “law,” and is simply a statement of the agency’s policy.

Of these subclasses, interpretive rules and general statements of policy can be issued with relatively little process. They may simply show up on an agency’s website. Legislative rules, by contrast, usually have to go through notice-and-comment rulemaking. 

How does notice-and-comment rulemaking work?

Notice-and-comment rulemaking has three steps: the proposed rule, the comment period, and the final rule. Often, there is also some post-rule review. We’ll consider those steps in turn.

Proposed rule. The proposed rule is what it sounds like. The agency publishes a draft rule setting out its preferred approach. The draft includes the text of the rule, along with a “preamble,” where the agency lays out its rationale. The preamble often explains why the agency thinks the rule is necessary, what problems the agency is trying to solve, and how the agency expects the rule to apply in practice. The preamble also says how long the public will have to comment on the rule. The comment period is usually between 30 and 60 days, though it can be extended.

Comment period. During the comment period, interested people submit their feedback. This feedback can range from simple questions or statements to highly sophisticated economic and legal analyses. These more complex comments may also point out the rule’s unanticipated consequences or highlight key issues the agency missed. And for high-profile rules, the comments may flood in by the thousands. For example, in 2023, when the DOL proposed a rule updating the Fair Labor Standards Act’s minimum-salary levels, the agency received more than 33,000 comments.

Comments are important for at least two reasons. First, they help the agency write a better rule. The agency has limited knowledge and resources; it can’t possibly know all the effects its rule will have on the regulated community. By bringing more information forward, comments help the agency understand and address those effects. Second, comments are often important in litigation. An agency must consider all major comments and explain its response to the big ones. If it doesn’t, the rule may be blocked in court as “arbitrary and capricious.”

Final rule. After the comment period ends, the agency reviews the comments, considers any serious issues raised, and adjusts the rule as the agency deems appropriate or needed. It then publishes a final rule. Like the proposed rule, the final rule will include the rule’s text as well as a preamble. The preamble can be fairly long—often much longer than the rule itself. The preamble both explains the agency’s reasoning and responds to important comments. It also includes certain mandatory sections to address the rule’s impact. For example, under the Regulatory Flexibility Act, an agency is supposed to assess the rule’s effect on small businesses. Because of requirements like these, some recent preambles have run more than a hundred pages.

Post-rule review. The final rule is not, however, necessarily final. First, Congress gets to weigh in. Certain “major” rules must be sent to Congress for review. Congress then has 60 days to disapprove of the rule through (relatively) streamlined procedures. If it does, the rule never takes effect, and the agency is barred from adopting any “substantially similar” rule in the future.

Courts also get a say. In recent years, most major rules have drawn lawsuits. For example, lawsuits were filed to challenge the DOL’s 2016 and 2024 overtime rules, as well as its 2019 joint-employment rule and its 2021 worker-classification rules. Other lawsuits were filed to challenge the Occupational Safety and Health Administration’s mask-mandate rule, the DOL’s 2016 “persuader” rule, and the Federal Trade Commission’s 2024 noncompete rule. And in all of these cases, courts blocked the rules from going into effect.

What rules do we expect to see?

That track record will doubtless inform the administration’s rulemaking strategy in 2026. Knowing that rulemaking is a long-term project—one fraught with risk—agencies will pick their shots carefully. They usually get only one shot at a rule during an administration’s four-year lifespan; they want to make each shot count. 

We already know what some of those shots will be. Every year, “executive” agencies release a regulatory agenda, where they announce their plans for rulemaking. In its own agenda, the DOL listed rulemaking covering worker classification, joint employment, and minimum wages for federal contractors (among other things). So we are likely to see rulemaking on those fronts. 

Similarly, while “independent” agencies don’t participate in the regulatory agenda, some have already tipped their hands. For example, the EEOC is likely to revisit the Pregnant Workers Fairness Act. The agency already issued an initial set of rules under that Act in 2024. But those rules have been criticized by the agency’s current leadership, which takes issue with their approach to gender and reproductive-health issues very broadly. A revision is widely expected. Likewise, the NLRB is also expected to return to familiar territory, revisiting election rules issued in 2023. Those rules sped up election timelines in ways criticized by the employer community. They are unlikely to align with the NLRB’s newly minted leadership.

What can employers do?

At each step, the employer community has a role to play. The most important may be to file comments. Again, comments can both improve the final rule and help build a case for future legal challenges. Employers will want to make sure that the agency hears their perspective and addresses their concerns. The best way to do that is file comments—either alone or with a coalition of like-minded employers. 

Employers can also study proposed rules for compliance purposes. Compliance with a final rule can take time and financial planning. And though most major rules build in a delay between publication and the effective date, the delay can be as short as a few months. Vigilant employers, however, can get a jump on the process by paying attention to the proposed rule. In recent years, final rules have closely tracked the original proposal; the differences have often been marginal. Employers can gain valuable insights by tracking each step in the process.