United States: Final Rules On Overtime, Crystalline Silica, And Persuader Agreements Are Expected In The First Half Of 2016

On Friday, federal agencies released their Fall 2015 Regulatory Plans and Unified Agendas. These semiannual reports detail all agency rulemaking efforts at their various stages of development and implementation. The regulatory plan, published along with the fall edition of the agenda, identifies agency priorities and provides information about the significant rulemaking actions the agencies expect to take in the year ahead.

The surprises in this year's fall agendas lie not with the anticipated proposed and final rules themselves, but rather with their projected issue dates or lack thereof. While the stated timeframes are always more aspirational than concrete, they do indicate where the agencies are fixing their attention and/or shifting priorities.

In May 2015 the Federal Acquisition Regulatory (FAR) Council published its highly anticipated Notice of Proposed Rulemaking (NPRM) to implement the so-called "blacklisting" procedures ordered by President Obama in his Fair Pay and Safe Workplaces Executive Order ("blacklisting EO"). The Department of Labor (DOL) issued separate guidance on this EO. Taken together, the NPRM and DOL guidance are expected to impose significant obligations on federal contractors, and increase their risk of doing business with the federal government. The final rule implementing the blacklisting EO is slated for an April 2016 publication date.1 The May 2015 NPRM announced, however, that a separate rulemaking would be forthcoming on the topic of state laws covered by the blacklisting EO. No such rulemaking has been issued, nor did a separate entry appear in the FAR Council's latest regulatory agenda.

Another rule employers are waiting for is the DOL Wage and Hour Division's (WHD) final rule revising the Fair Labor Standards Act's overtime exemptions for bona fide executive, administrative, or professional employees. According to the DOL's Fall 2015 Statement of Regulatory Priorities, the WHD is currently analyzing comments to the proposed rule, first announced on June 30, 2015, and plans to finalize the rule in July 2016.

The DOL's Office of Labor-Management Relations (OLMS) agenda also included some surprises. The OLMS pegged March 2016 as its estimated date for issuing its controversial "persuader" rule. Proposed back in 2011, the persuader rule would both broaden the activities that trigger reporting requirements under the Labor-Management Reporting and Disclosure Act (LMRDA) and narrow those who are currently exempt. It is expected that if the final rule resembles the initial proposal, this rule would have an extreme chilling effect on attorney-client communications. Notably, an accompanying proposal that would clarify elements of labor consulting Form LM-21, required under section 203(b) of the LMRDA, is not slated to be issued until September 2016. The LM-21 form is a key element to complying with the labor consultant provisions of the LMRDA. Therefore, if the OLMS adheres to its regulatory schedule, guidance on how to comply with the new rule will be issued six months after the rule itself is finalized.

On the employment safety front, the Occupational Safety and Health Administration (OSHA) plans to move on its rule creating a new standard for occupational exposure to crystalline silica. The agency expects to issue a final rule setting new exposure limits by February 2016. According to OSHA, since this rule was proposed in September 2013, it has received more than 1,700 comments and heard testimony from over 200 stakeholders during public hearings.

The following provides a brief summary of other items on this year's fall agenda.

Department of Labor

The DOL is currently working on 71 regulatory matters, including 25 final rules, 27 proposed rule, and 19 items at the pre-rule stage. An additional 16 rules have been placed on the regulatory backburner. The agency's Statement of Regulatory Priorities outlines the five components of Labor Secretary Thomas Perez's "opportunity agenda":

  • Training more people, including veterans and people with disabilities, to have the skills they need for the in-demand jobs of the 21st century;
  • Ensuring that individuals have the peace of mind that comes with access to health care, retirement, and federal workers' compensation benefits when they need them;
  • Safeguarding a fair day's pay for a fair day's work for all hardworking Americans, regardless of race, gender, religion, sexual orientation, or gender identity;
  • Giving workers a voice in their workplaces; and
  • Protecting the safety and health of workers so they do not have to risk their lives for a paycheck.

A variety of divisions within the DOL are tackling these priorities.

Wage and Hour Division

As already noted, the WHD is slated to issue its final overtime rule by July 2016. The division is also expected to move on rules implementing Executive Order 13706 ("EO 13706"), signed by President Obama on September 7, 2015, that will allow federal contractor employees to earn up to seven days of paid sick leave per year. This regulatory item was highlighted in the agency's Statement of Priorities. EO 13706 requires the DOL to act by September 2016. To this end, the WHD plans to issue a proposed rule by February 2016, and a final rule by the September deadline.

Also by February 2016, the WHD plans to issue a request for information (RFI) regarding the impact of the use of electronic devices by nonexempt employees on their hours worked. According to the agency's rule list, the purpose of the RFI is to "gather information about employees' use of electronic devices to perform work outside of regularly scheduled work hours and away from the workplace, as well as information regarding last minute scheduling practices being utilized by some employers that are made possible in large part by employees' use of these devices."

Several WHD regulatory actions remain on the long-term priority list. Rules that are not expected to be acted upon within the next twelve months are traditionally relegated to this long-term category. For example, the "right-to-know" regulation that would require employers to disclosure to workers their status as employees or independent contractors and explain how their pay is calculated has not moved off this list, and has no estimated completion date.

Employee Benefits Security Administration

While several lawmakers have been actively trying to prevent the EBSA from finalizing a rule to clarify the circumstances under which a person will be considered a "fiduciary" when providing investment advice related to retirement plans, individual retirement accounts, and other employee benefit plans, the DOL considers this rule a priority:

The proposed rule includes a prohibited transaction exemption for any advice that raises any conflict of interest concerns so that the advice has to first be provided pursuant to a contract where the advisor agrees to provide the advice in the best interest of the client. The underlying principle is very simple and rooted in basic common sense: if you want to give financial advice, you have to put your clients' best interests first, and not your own. EBSA continues to review the extensive public comments submitted on the proposed rule.

While no firm date is set, the EBSA's rule list indicates the agency will finish reviewing comments on this rule by the end of this year.

Occupational Safety and Health Administration

One of OSHA's stated priorities is "developing a Final Rule that will address employers' electronic submission of data required by agency regulations governing the Recording and Reporting of Occupational Injuries." A final rule governing this electronic reporting system is scheduled to be issued in March 2016.

By the end of 2016, the agency plans to issue a proposed rule that would create an infectious disease standard. According to OSHA, this new standard would "ensure that employers establish a comprehensive infection control program and control measures to protect employees from infectious disease exposures to pathogens that can cause significant disease."

Several regulatory items are still languishing on OSHA's long-term actions list. Among them are rules requiring employers to develop and implement an Injury and Illness Prevention Program ("I2P2") and creating a column on the OSHA 300 Log to record musculoskeletal injuries.

Office of Federal Contract Compliance Programs

By the end of this year, the OFCCP has made it a priority to issue a final rule updating its sex discrimination regulations. By May 2016, the agency is expected to issue a proposed rule revising construction contractors' affirmative action requirements, as well as a final rule requiring federal contractors and subcontractors to submit summary data on the compensation paid to their employees, including data by sex and race. The latter rule was spurred by an April 8, 2014 Presidential Memorandum to Labor Secretary Perez, ordering him to propose such a rule within 120 days.

Equal Employment Opportunity Commission

According to the EEOC's Statement of Regulatory Priorities, the agency intends to finalize its two rules governing the legality of employer wellness programs under the Americans with Disabilities Act (ADA) and the Genetic Information Non-Discrimination Act (GINA) by February 2016. The EEOC only recently published its proposed rule amending GINA, and issued the proposed rule amending the ADA last April.

Most of the eight items on the EEOC's agency rule list involve the federal sector and/or are administrative in nature.

Conclusion

With little more than a year left in the Obama Administration, the latest regulatory agenda reflects the last priorities that could come to fruition before the next Administration takes over. Even with the apparent indefinite timeframe for some actions, if the others listed in the regulatory agenda are indeed completed as scheduled, employers will face an onslaught of new obligations.

A complete list of federal agency regulatory plans and the unified agenda of regulatory and deregulatory actions can be accessed from the Office of Information and Regulatory Affairs' web page.

Footnote

1. The FAR Council initially included this regulatory item on its long-term list, but revised the final rule's publication date several hours later.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Michael J. Lotito
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.