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.
In keeping with past practice, federal agencies released their spring regulatory agendas on the eve of a holiday weekend. These semiannual reports list all of the federal agency regulations currently under development or review. Notably, these reports include anticipated release dates for proposed or final regulations. While often aspirational, these dates provide some insight into the agencies' priorities for the next six months. The following highlights some key pending regulatory actions from the spring agenda.
Department of Labor
The DOL is actively working on 70 separate regulatory items, including 36 rules at the proposed stage, 21 at the final rule stage, and 13 at the pre-rule stage of regulatory development. An additional 16 items are housed on the agency's long-term list, meaning the next action the agency intends to take on these measures will be more than a year from now – if ever.
Wage and Hour Division
A proposed rule re-defining the white collar overtime exemption under the Fair Labor Standards Act (FLSA) is imminent. Last year, President Obama directed the Secretary of Labor to "modernize and streamline" these white collar overtime exemption regulations, which define the scope of the executive, administrative, professional, outside sales, and computer exemptions under the FLSA. According to the spring regulatory agenda, this proposed rule has a June 2015 release date.
By the end of the summer, the Wage and Hour Division (WHD) will issue a request for information "on the use of technology, including portable electronic devices, by employees away from the workplace and outside of scheduled work hours." Entitled "Hours Worked Under the Fair Labor Standards Act," this regulatory effort is at the pre-rule stage. Once the agency reviews the information gathered from stakeholders, it will consider issuing a proposed rule on this area. This item is a new one on the WHD's agenda.
Office of Federal Contract Compliance Programs
The Office of Federal Contract Compliance Programs (OFCCP) is scheduled to issue three final and one proposed rule in the coming months.
By August of 2015, the OFCCP plans to publish a final rule implementing Executive Order (EO) 13665. Signed by the President on April 8, 2014, this EO adds pay transparency requirements to existing federal contractor obligations. Specifically, the EO adds new prohibitions on discrimination based on the inquiry, discussion, or disclosure of pay.
The release of a final rule creating a compensation data collection tool is slated for November 2015. This regulatory action had been in the works for years, but received renewed attention after President Obama issued a memorandum on April 8, 2014, directing the Secretary of Labor to propose, within 120 days, a rule requiring federal contractors and subcontractors to submit to the DOL summary data on the compensation paid to their employees, including data by sex and race.
Also by November, the OFCCP has projected it will issue a proposed rule revising regulations implementing construction contractors' affirmative action obligations.
By the end of 2015, the OFCCP plans to issue revised regulations governing sex discrimination in federal contracting. According to the regulatory agenda, current guidance is more than 30 years old, warranting a "regulatory lookback."
Occupational Safety and Health Administration
The Occupational Safety and Health Administration (OSHA) has set September 2015 as the target date for releasing a final rule that would change its reporting system for occupational injuries and illnesses. According to the regulatory agenda, an "updated and modernized reporting system would enable a more efficient and timely collection of data, and would improve the accuracy and availability of the relevant records and statistics." Specifically, the rule expands OSHA's legal authority "to collect and make available injury and illness information required under part 1904, and a modification to 29 CFR part 1904.35 to clarify an employee’s right to report injury and illnesses to their employer without fear of retaliation."
The agency will soon issue a proposed rule to amend its recordkeeping regulations "to clarify that the duty to make and maintain accurate records of work-related injuries and illnesses is an ongoing obligation." The rule will explain that the duty to maintain records does not expire if the employer failed to create them in the first place.
With respect to the many standards OSHA is developing, a new one governing the regulation of crystalline silica is still under consideration. By June 2015, the agency plans to complete its review of the comments solicited in response to the proposed rule issued in 2013. A proposed rule governing occupational exposure to beryllium is expected any day now.
In contrast, a standard regulating combustible dust is not due anytime soon. OSHA does not intend to initiate Small Business Regulatory Enforcement Fairness Act (SBREFA) review of such a rule until February 2016. Movement on a bloodborne pathogens standard is similarly slow going.
With respect to whistleblowing regulations, OSHA is the agency charged with enforcing the non-retaliation provisions in 22 separate statutes. To this end, an interim final rule governing the procedures for the handling of retaliation complaints under the employee protection provision of the Moving Ahead for Progress in the 21st Century Act is scheduled for September 2015. Final rules governing retaliation complaints under the Affordable Care Act and the Consumer Financial Protection Act are also due by this time. By July, OSHA expects to take final actions governing the whistleblower provisions of the Seaman's Protection Act, FDA Food Safety Modernization Act, National Transit Systems Security Act and the Federal Railroad Safety Act.
Office of Labor Management Standards
Of interest to many employers is a final rule to be issued by the DOL's Office of Labor-Management Standards (OLMS) that would both broaden the types of activities that trigger reporting requirements under the Labor-Management Reporting and Disclosure Act, and narrow the exemptions. Release of this final "persuader" rule is scheduled for December 2015, although this date has been repeatedly extended. At the same time, the OLMS intends to issue a proposed rule amending Consultant Form LM-21, Receipts and Disbursements Report.
Federal Acquisition Regulations
A number of proposed and final rules governing federal contracting are expected in the coming months. A final rule implementing the recent Executive Order imposing an increased minimum wage for federal contractor employees is expected in July 2015. The much-anticipated proposal to implement the "Fair Pay and Safe Workplaces" Executive Order, more commonly known as the "Blacklisting" EO, is set to be released any day now.
Equal Employment Opportunity Commission
As EEOC Chair Jenny Yang recently stated during a Senate Committee hearing, by July 2015, the agency expects to issue a proposed rule amending the regulations on the Genetic Information Nondiscrimination Act of 2008 to address employer-provided inducements to employees' spouses or other family members who respond to questions about their current or past medical conditions on health risk assessments. The agency recently issued a proposed rule regarding the treatment of employer wellness programs under the Americans with Disabilities Act (ADA).
Other items on the EEOC's short regulatory list include proposed clarifications to discrimination complaint procedures for entities receiving federal financial assistance. The EEOC has joint regulations with the Department of Justice (DOJ) explaining how federal agencies providing financial assistance should process disability-based employment discrimination complaints/charges involving employers subject to both title I of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act, and another joint regulation involving pay discrimination. By October 2015, the agency plans to issue proposals to harmonize and clarify the complaint procedures in light of the EEOC/DOJ cooperative efforts.
Similarly, the EEOC has a joint regulation with the DOL's Office of Federal Contract Compliance Programs to coordinate the processing of disability-based employment discrimination complaints/charges filed against employers holding government contracts or subcontracts. To this end, the EEOC will issue a similar proposal to harmonize/clarify the complaint procedures by the same target date.
A separate list in the spring regulatory agenda includes items on the "long-term" priority list. These are essentially rulemaking efforts that have been put on the back burner for a variety of reasons. For example, the DOL's infamous "Right-to-Know" rule that would require employers to inform workers whether they are independent contractors or employees, and if employees, how their pay is calculated, has been placed on the long-term shelf. So, too, has the Employee Benefits Security Administration's rule to implement the provision in the Affordable Care Act requiring employers with more than 200 full-time employees to automatically enroll their employees in their health insurance plans.
In 2010, OSHA proposed adding a musculoskeletal disorders (MSD) column to the occupational injury and illness reporting form. According to the spring agenda, any further action on this proposal is undecided. Another controversial OSHA effort – requiring employers to implement an Injury and Illness Prevention Program (the so-called "I2P2" program) – has been relegated to this long-term list.
By the end of 2016, however, OSHA plans to issue a proposed rule creating an infectious disease standard. Whether this proposal materializes remains to be seen.
Agency regulatory agendas offer significant clues as to where the administration is headed in the months to come. While many of the items discussed above have been under development for quite some time, new proposed release dates indicate which of the dozens of regulatory efforts are currently receiving the most attention. More information on the regulatory agenda can be found at reginfo.gov.