Appropriations Bill Includes Regulatory Constraints on DOL, NLRB

Both the House and Senate have passed a massive fiscal year 2012 appropriations package (pdf) that would allocate $14.5 billion for the Department of Labor and $278 million for the National Labor Relations Board, but includes a number of restrictions on this funding. The appropriations package is comprised of three separate bills, one of which is a consolidated measure that provides funding for a number of federal agencies, including the DOL and NLRB, for FY 2012.

Under the terms of the appropriations package, the DOL would receive $145.4 million more in FY 2012 than it received in 2011, although the boost in funding was largely due to a provision that fully funds Job Corps in the current fiscal year. According to a detailed summary (pdf) of the bill, without this provision, the DOL is actually receiving $545.6 million less than it received last year, and $942.2 million below the President’s funding request. The NLRB would receive $4 million less than it received last year, and an amount $8.9 million below the President’s budget request.

The funds come with strings attached. Essentially, the measure would prevent the agencies from using appropriations funds to pursue and/or enforce many controversial items on their regulatory agendas. Specifically, provisions in the bill would accomplish the following:

  • Prevent the DOL’s Employment and Training Administration (ETA) from implementing the H-2B Wage Methodology for Temporary Non-Agricultural Employment Rule. The DOL’s H-2B program provides visas to foreign workers if qualified U.S. workers are not available and the employment of foreign workers would not adversely affect the wages and working conditions of similarly employed U.S. workers. The rule at issue revises the methodology for establishing wage rates under this visa program. Because this rule is currently undergoing judicial challenge, the DOL has delayed the effective date until Jan. 1, 2012. The appropriations bill would prevent any funds from being used to implement this rule.
  • Prohibit the Occupational Safety and Health Administration (OSHA) from using funds to develop, implement or enforce a rule that would add a column for Musculoskeletal Disorders (MSD) to the Occupational Injury and Illness Recording and Reporting Requirements form (Log 300). 
  • Prohibit the DOL from implementing or enforcing a rule on coal dust until an independent assessment of the integrity of the data and methodology behind the rule is conducted.
  • Prevent the NLRB from using appropriations funds to issue any new administrative directive or regulation that would provide employees “any means of voting through any electronic means that enables off-site, remote, or otherwise absentee voting in an election to determine a representative for the purposes of collective bargaining.”
  • Prevent the Employee Benefits Security Administration (EBSA) from using appropriations funds to promulgate a proposed rule issued in 2010 that revises the definition of “fiduciary” for the purposes of rendering investment advice under the Employee Retirement Income Security Act (ERISA). In September 2011, the EBSA announced that it had decided to re-propose this rule. The Manager’s Statement explains that this section shall not be construed as preventing the agency from publishing a new or revised NPRM relating to the definition of a fiduciary, provided that interested parties and stakeholders are afforded a sufficient opportunity to review and comment on the proposed rulemaking.
  • Prohibit funds to be used to enforce the Fair Labor Standards Act (FLSA) regulation that makes automotive service managers, service writers, service advisors and service salesmen who are “not primarily engaged in the work of a salesman, partsman or mechanic” subject to minimum wage and overtime requirements.

Total funding for DOL’s workforce protection agencies for FY 2012 is $1,615,664,000, an increase of $43.5 million from the previous year. Notably, the conference agreement does not include funding requested for expansion of the worker misclassification initiative. Broken down by DOL subagency, the appropriations bill would provide the following approximate amounts:

  • $183.5 million for the Employee Benefits Security Administration (EBSA), an increase of $25.1 million from FY 2011 funding
  • $227.5 million for the Wage and Hour Division (WHD), the same as last year
  • $41.4 million for the Office of Labor Management Standards (OLMS), the same as last year
  • $105.4 million for the Office of Federal Contract Compliance Programs (OFCCP), the same as last year
  • $565.9 million for the Occupational Safety and Health Administration (OSHA), an increase of $7.2 million from last year. The increase includes an additional $6.4 million for compliance assistance activities and an additional $1.1 million for whistleblower enforcement
  • $374 million for the Mine Safety and Health Administration (MSHA), an increase of $12.2 million from last year

The appropriations bill also provides funding of $13.4 million for the National Mediation Board (NMB). In addition, the spending bill, which provides funding for the Department of Defense (DOD) for FY2012, extends the existing restrictions on a defense contractor’s use of mandatory arbitration agreements in certain instances. The provision in FY 2012 DOD Appropriation Act prohibits contractors or subcontractors at any tier that receive funds appropriated by the Act for a contract in excess of $1 million from entering into or enforcing mandatory, pre-dispute agreements to arbitrate “any claim under title VII of the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment, including assault and battery, intentional infliction of emotional distress, false imprisonment, or negligent hiring, supervision, or retention.”

Photo credit: digital planet design

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.