United States: DOL's Aggressive Regulatory Agenda Continues

Last Updated: December 14 2015
Article by Christopher Wilkinson

The U.S. Department of Labor's ("DOL") role as a strong player in the Obama Administration's domestic agenda shows no signs of letting up. DOL is poised to finalize big changes in the federal contracting and wage and hour spaces. Employers should be ready to meet the compliance challenges associated with these new obligations.

The Office of Information and Regulatory Actions ("OIRA"), the regulatory arm of the Office of Management Budget ("OMB"), released the Fall 2015 Regulatory Agenda. Publication of the regulatory agenda is important as it lists when government agencies intend to propose or finalize their rules in the next 12 months. Notably, as the Obama administration winds down, publication of the agenda gives significant insight into what the administration hopes to accomplish before the end of the term. The anticipated dates are not binding and agencies frequently leave items on the agenda even though they may not be a high priority.

Nonetheless, the Fall 2015 release confirms that the Fair Pay and Safe Workplaces (a.k.a. the "Blacklisting" regulations) regulatory actions remain a high priority with an anticipated April 2016 publication date. In addition, the white collar overtime regulations are moving at a quick pace with a summer 2016 publication date.

Blacklisting Regulations are Set for April 2016 Publication. The Fall agenda lists April 2016 as the publication for the final version of Fair Pay and Safe Workplaces. As a reminder, the regulatory actions at issue here are the Federal Acquisition Regulatory Council's regulation and the companion Department of Labor guidance which grew out of the President's Executive Order No. 13673. The Executive Order required that contractors with over $500,000 in federal contracts report a three-year history of their labor law violations to the contracting agencies and, if contractors are deemed not "responsible," they face several administrative sanctions including debarment from federal contracting. Several challenges related to this effort exist including the significant reporting burden on contractors as well as major unresolved practical issues such as the difficulties prime contractors would face in reporting for all of their multi-tiered subcontractors.

The April 2016 anticipated publication date indicates that this remains a very high priority for the Administration. The April date also may confirm our belief that the Administration is considering the Congressional Review Act ("CRA") in the timing of the regulation. This 1996 law can play a role in the timing of regulations near the end of a presidential term. It requires major rules to be submitted to and considered by Congress before they take effect. If Congress adjourns its annual session less than 60 "legislative days" in the House of Representatives or 60 "session days" in the Senate after a rule is submitted to it, then the rule is carried over to the next session of Congress and subject to possible disapproval during that session. Importantly, if the regulation is sent after the 60 day timeframe and the next Congress disapproves of a final regulation, the next President would be able to scuttle the regulatory action by signing the resolution of disapproval. President Bush was able to kill the DOL's ergonomics rule using this tool. The April publication date may reflect concern about the CRA deadline and confirms that the blacklisting regulations are on a fast track to be implemented.

Final Overtime Regulations to Come During the Summer. The Agenda has the Department of Labor ("DOL") Wage and Hour Division's White Collar regulations slated to be published in July 2016. The proposal would raise the salary test for non-exempt works to $50,440 from $23,660. In addition, the proposal indicated a possible change to the duties test and suggested several proposed options. It remains to be seen whether the DOL will change the duties test. However, if it does, we anticipate that it will adopt the California test which requires that employees spend at least 50 percent of their time performing the primary duty and not counting concurrently performed nonexempt work. DOL's refusal to extend the comment period indicates its desire to move forward with the rule quickly. However, the July date is a little later than what we expected. This may be a reflection of the need for the DOL to review the more than 290,000 submitted comments. However, the summer publication date could be read that the Agency is devising strategies to change the duties test. In any event, any change that takes effect in the third or fourth quarter of 2016 will pose a very difficult implementation burden, as employers may be required to not only audit their workers for compliance with the salary test but may be required to make a very complex assessment for workers in conjunction with a changed duties test.

No Surprises in the OFCCP Agenda. The OFCCP Regulatory Agenda is fairly straightforward. As expected, the amendments to the Sex Discrimination Guidelines are on the list for this month. While the Agency extended the comment period to take into account the Supreme Court's decision in Young v. UPS, it remains unclear whether the guidelines will go beyond incorporating current Title VII principles. The heavy lift would have been adding sexual orientation and gender identity. But OFCCP gained authority on these bases through the President's recent executive action and, therefore, no need exists for the guidelines to make their mark in this regard. The only other closely watched regulatory action is the final version of the Equal Pay Report regulation. The proposed rule would require that contractors report their composite W-2 wages, hours worked and other pay related data to OFCCP. The release of the final rule moved from November 2015 in the Spring agenda to May 2016 in the recent release. This rule also garnered significant opposition from the contracting community and the continued delay may signal that this may not continue to be a high OFCCP priority. As this gets delayed, there is a growing chance that the EEOC and the OFCCP may be considering joint efforts. A report commissioned by the EEOC several years ago as well as the comments to the rule suggested that the agencies work together.It remains to be seen how the joint efforts will manifest themselves but it would not be surprising if EEOC begins sub-regulatory efforts to add compensation level data to the EEO-1 forms.

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.

In association with
Related Video
Up-coming Events Search
Font Size:
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
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
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.


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.


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.


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.


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.


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.


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.