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.
Once again, federal agencies quietly released their semi-annual regulatory agendas on the eve of a long holiday weekend, and on the same day President Obama announced his nomination of Shaun Donovan to lead the Office of Management and Budget (OMB). Twice a year, agencies set forth all rulemaking items under development, along with target completion dates. While these dates are often aspirational, they do provide some insight into which rules will be released sooner rather than later, and which items have been placed on the backburner.
The OMB bills itself as the “implementation and enforcement arm of Presidential policy.” The OMB must approve agency rules before they are published as final. The head of the OMB, therefore, has the ability to expedite or delay various rulemaking efforts. Nominee Donovan, who is the outgoing secretary of Housing and Urban Development, could wield significant rulemaking authority in the final years of the President’s term.
The following provides a brief overview of some noteworthy agenda items:
Department of Labor
The DOL’s Spring 2014 agency rule list contains 69 items at the pre, proposed, and final rulemaking stages. OSHA again dominates the rulemaking field with a total of 26 measures at various points in the rulemaking process. Standards governing combustible dust, bloodborne pathogens, and infectious diseases are still at the pre-rule stage. By August of 2014, OSHA intends to issue a proposed rule amending its recordkeeping regulations “to clarify that the duty to make and maintain accurate records of work-related injuries and illnesses is an ongoing obligation.” A separate final rule to “improve tracking of workplace injuries and illnesses” is slated for publication by March 2015. This rule, according to OSHA, would expand the agency’s legal authority to collect and make available injury and illness information.
OSHA is the agency charged with enforcing the whistleblower provisions in 22 separate statutes. Final or interim final rules for handling retaliation complaints under the Affordable Care Act (ACA), Moving Ahead for Progress in the 21st Century Act (MAP 21), Corporate and Criminal Fraud Accountability Act of 2002, Consumer Financial Protection Act, Seaman's Protection Act, FDA Food Safety Modernization Act, National Transit Systems Security Act, Surface Transportation Assistance Act, and the Federal Railroad Safety Act are all scheduled to be released by February 2015.
Notably, OSHA’s development of a rule requiring employers to implement an Injury and Illness Prevention Program (I2P2) has been placed on the agency’s “long-term actions” list. These items do not include a proposed release date. Also in rule-making purgatory is OSHA’s proposed plan to add a musculoskeletal disorders (MSD) column to OSHA’s Form 300 injury and illness log.
Wage & Hour Division
In March, President Obama surprised many by ordering the DOL to "modernize and streamline" its "white collar" overtime exemption regulations. To this end, the Wage and Hour Division (WHD) is scheduled to release a proposed rule implementing this directive by November 2014. This rule would “define and delimit” the Fair Labor Standards Act (FLSA) overtime exemptions for executive, administrative, professional, outside sales, and computer employees.
The WHD is also set to release regulations revising the definition of "spouse" in light of the U.S. Supreme Court's decision in United States v. Windsor. According to the agenda, this proposed rule is imminent.
An interesting development is that the WHD’s plan to update the recordkeeping regulations under the FLSA “to enhance the transparency and disclosure to workers of their status as the employer's employee or some other status, such as an independent contractor, and if an employee, how their pay is computed,” otherwise known as the “Right to Know” requirement, has been placed on the administrative backburner. The regulatory item has been relegated to the “long-term actions” list with no target release date. This is surprising given that David Weil, the new WHD Administrator, is expected to crack down on employee misclassification.
Office of Labor Management Standards
The much-anticipated final “persuader” rule that would both broaden the types of activities that trigger reporting requirements under the Labor-Management Reporting and Disclosure Act, and narrow those who are currently exempt, is now scheduled to be issued by December of 2014. This release date would coincide with that of the final rule amending Consultant Form LM-21, Receipts and Disbursements Report.
The Office of Federal Contract Compliance Programs is set to release four proposed rules within the year. By January 2015, the agency intends to issue a proposal amending construction contractor’s affirmative action requirements.
In April 2014, the President issued a memorandum – Advancing Pay Equality Through Compensation Data Collection – directing the Department of Labor to issue regulations within 120 days that will require federal contractors and subcontractors to submit to the DOL summary data on the compensation paid their employees, including data by sex and race. To this end, the OFCCP intends to issue a proposal implementing this directive by August of this year.
The President also issued an Executive Order on April 8 Non-Retaliation for Disclosure of Compensation Information – making it unlawful for contractors to retaliate against employees who disclose their pay information. By September the OFCCP will issue a proposed rule implementing this requirement. The same month, the agency is set to release a separate proposal amending its sex discrimination guidelines, which the agency feels warrant a “regulatory lookback.”
The DOL’s Employee Benefits Security Administration has a number of proposed and final regulations on its plate. Among these items is a final rule requiring administrators of defined benefit pension plans to provide participants, beneficiaries, and other parties with an annual funding notice, among other obligations. This rule is slated to be released in July of this year.
On the EBSA’s long-term actions list is a rule to implement section 1511 of the ACA, which added section 18A to the FLSA requiring employers with over 200 full-time employees and that offer enrollment in one or more health benefits plans to automatically enroll new full-time employees in one of the plans offered and to continue enrollment of current employees. The next regulatory steps are listed as undetermined.
The Equal Employment Opportunity Commission had not been particularly active on the regulatory front in recent years. This could soon change. The EEOC’s spring 2014 agency rule list contains a few interesting items. Next month, the EEOC intends to issue a proposed rule that would amend 29 CFR section 1630.14(d) “to address whether, and to what extent, title I of the Americans with Disabilities Act (ADA) allows employers to offer financial inducements and/or impose financial penalties as part of wellness programs offered through their health plans, and to address other aspects of wellness programs that may be subject to the ADA's nondiscrimination provisions.” Also by next month the EEOC is scheduled to release a proposed rule amending regulations under the Genetic Information Nondiscrimination Act of 2008 (GINA). Specifically, the proposed rule would “resolve the frequently-asked question of whether employers may offer inducements to employees' spouses or other family members who answer questions about their current medical conditions on a health risk assessment (HRA).” The proposal would also make some technical amendments to correct a typographical error in the rule's discussion of wellness programs, and add references to the ACA where needed. The EEOC is scheduled to issue other proposals applicable to the federal sector.