Labor and Employment Rulemaking Prominent in President Biden’s First Regulatory Agenda

On June 11, 2021, the federal government released its unified federal regulatory agenda for spring 2021, which outlines regulatory and deregulation actions agencies expect to take in the coming months. With over 70 items on the docket, the U.S. Department of Labor (DOL) has indicated plans to overhaul regulations on a host of issues in the coming year, including the treatment of tips under the Fair Labor Standards Act (FLSA), joint employer status under the FLSA, modernizing and updating the Davis-Bacon Act, increasing the minimum wage for federal contractors, and a range of occupational safety and health standards, including an infectious disease standard for employees in health care and other “high-risk” environments.

The Wage and Hour Division (WHD) is poised to be one of the DOL’s most active offices. On March 12, 2021, the DOL proposed rescinding the FLSA joint employer rule that took effect in March 2020 but was subsequently vacated by a district judge in New York. The judge’s decision is currently on appeal to the Second Circuit.1 The DOL has included the regulation in its agenda, but without an expected date for a final version.

While portions of the 2020 final tip rule went into effect on April 30, 2021, the WHD delayed other portions of the rule from going into effect until December 31, 2021. The regulatory agenda has once again included tip regulations under the FLSA as a topic the WHD plans to revisit.

Additionally, the WHD looks like it will be moving quickly to implement President Biden’s Executive Order on Increasing the Minimum Wage for Federal Contractors, as the proposed rule is slated to be released this July. The proposed rule to “update and modernize the regulations implementing the Davis-Bacon and Related Acts to provide greater clarity and enhance their usefulness in the modern economy” is scheduled for November. Lastly, the agenda includes a proposal to revisit the overtime rule on its list of long-term regulatory actions without a specific target date.

The National Labor Relations Board (NLRB) is pursuing two new rules, one seeking to clarify how videoconferencing can be used as an option for public proceedings even after the COVID-19 pandemic subsides and the other aiming to improve the NLRB’s ethics procedures by requiring enhanced corporate relationship disclosures for Board members. The latter is expected to be published as a final rule later this month.

Notably, the Equal Employment Opportunity Commission (EEOC) did not approve a regulatory agenda for the current term. The EEOC previously froze the Trump-era proposed rules on wellness programs in February. The agency’s final rule on conciliation, published in January 2021, is the subject of a repeal attempt in Congress by way of the Congressional Review Act. The Senate voted to repeal the rule on May 19, and action on repeal in the House of Representatives is expected shortly.  If the House approves legislation to repeal the rule, President Biden is expected to sign it, and thus strike the EEOC’s rule from the Code of Federal Regulations.  Under the Congressional Review Act, if a rule is repealed in this fashion, an agency may not issue a “substantially similar” rule absent congressional authorization.

It is important to note that the regulatory agenda is merely an aspirational document, and proposed actions and deadlines often slip.  Further, agencies may undertake regulatory and sub-regulatory efforts that are not proposed on the agenda.  Littler’s WPI will continue to keep readers apprised of relevant developments.

See Footnotes

​1 Littler represents a coalition of trade associations that intervened in the matter.

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.