Administration Publishes Fall 2014 Unified Regulatory Agenda

We expect 2015 to be a very busy year for actions on new or proposed federal regulations in the absence of congressional legislation. That was confirmed on November 21, 2014, when the administration published its “Unified Regulatory Agenda for Fall 2014” (Fall 2014 Regulatory Agenda) online at Reginfo.gov, a website of the Office of Information and Regulatory Affairs. The regulatory agenda is designed to inform the public of the current status and future outlook of proposed federal regulations. The current agenda for labor and employment regulations reveals the federal agencies’ progress on over 75 separate rules, including several significant regulatory proposals from the U.S. Department of Labor’s (DOL) Occupational Safety and Health Administration (OSHA), Office of Labor-Management Standards(OLMS), Wage and Hour Division (WHD), and Office of Federal Contract Compliance Programs (OFCCP), as well as the National Labor Relations Board (NLRB) and the Federal Acquisition Regulatory (FAR) Council.

While the Fall 2014 Regulatory Agenda discloses proposed dates for actions on some of these rules in 2015, there is still very little detail on others.

Here is the status and outlook for several significant rules:

1. The FAR Council’s rule on the “Fair Pay and Safe Workplaces” Executive Order on federal contractors and subcontractors is scheduled to be issued as a Notice of Proposed Rulemaking (NPRM) in January 2015.

However, there is no mention of the DOL’s guidance on the “Fair Pay and Safe Workplaces” Executive Order. (The executive order requires the Secretary of Labor to “develop guidance . . . to assist agencies in determining whether administrative merits determinations, arbitral awards or decisions, or civil judgments were issued for serious, repeated, willful, or pervasive violations of these requirements for purposes of implementation of any final rule issued by the FAR Council pursuant to [the] order.”)

2. The NLRB’s “ambush election” rule is recorded as “Still to be Determined” according to the Regulatory Agenda’s schedule, but we anticipate the final rule will issue before the expiration of Board Member Nancy J. Schiffer’s term on December 16, 2014.

3. WHD’s Part 541 overtime regulation is scheduled to be issued as an NPRM in February 2015.

4. The DOL’s persuader rule and revisions to LM-21 forms are both scheduled to be issued as a final rule in August 2015.

5. OSHA’s Crystalline Silica rule has a date of June 2015 to “analyze comments.” No other information about a final rule is indicated.

6. OSHA’s injury and illness electronic recordkeeping rule is scheduled to be final in August 2015.

7. OFCCP’s Pay Data Tool regulation, for which the comment period will close on January 5, is scheduled to be finalized in August 2015.  OFCCP predicts that it will issue a final a rule by August, 2015, but that remains to be seen.

8. OFCCP indicates that it plans to issue a final rule to implement Executive Order 13672 to prohibit discrimination by federal contractors based upon sexual orientation and gender identity. The final rule is expected by the end of November 2014.

9. OFCCP plans to issue a final rule by September 2015, to implement Executive Order 13665 “Non-Retaliation for Disclosure of Compensation Information.” The comment period for this NPRM ends on December 16, 2014.

10. Also included in the DOL’s Regulatory Agenda is the announcement of expected rule making associated with implementation of the Workforce Innovation and Opportunity Act (WIOA).  The Employment and Training Administration expects to issue an NPRM by January 18, 2015, stating:

The Department of Labor must develop and issue a Notice of Proposed Rulemaking (NPRM) that proposes to implement the changes WIOA makes to the public workforce system in regulations.  Through the NPRM, the Department will propose ways to carry out the purposes of WIOA to provide workforce investment activities, through State and local workforce development systems, that increase employment, retention, and earnings of participants, meet the skill requirements of employers, and enhance the productivity and competitiveness of the Nation.

11. The DOL’s Employee Benefits Security Administration’s (EBSA) reproposed definition of when a person will be considered a “fiduciary” under the Employee Retirement Income Security Act (ERISA) is scheduled for release in January 2015 according to the latest DOL guidance plan. The regulatory definition of a fiduciary is expected to broaden and significantly impact all aspects of retirement plans and individual retirement accounts. However, this guidance has been delayed on multiple occasions since being withdrawn in 2011.

12. The U.S. Department of the Treasury will continue to work with the U.S. Department of Health and Human Services (HHS) and EBSA to provide regulatory guidance implementing the tax aspects of the Affordable Care Act. The Treasury Department plans to issue final regulations regarding minimum value of employer-sponsored coverage, for purposes of premium tax credit eligibility, within the next two months.

13. WHD plans to issue a final rule revising the definition of “spouse” in the Family and Medical Leave Act (FMLA) to reflect the United States v. Windsor decision. Not only will this regulation expand the definition of eligible employees entitled to FMLA leave, it will also impact continued health coverage opportunities during FMLA leave under employer-sponsored health and welfare plans.

14. The U.S. Equal Employment Opportunity Commission (EEOC) plans to issue a proposed rule for employer-sponsored wellness programs in February 2015, addressing the interaction of the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act of 2008 and permitted participation-related financial incentives and penalties.

Conclusion

These are merely a few of the more controversial rules to be acted on in 2015 and beyond, each one demanding priority attention through the filing of public comments as they progress to final issuance through the regulatory process. Thereafter, several of these regulations will be subject to congressional review and, perhaps, funding restrictions on enforcement through appropriations riders, as well as litigation brought by the business community challenging them.