Washington D.C. Employment Law Update : Washington D.C. Employment Lawyer & Attorney : Littler Mendelson Law Firm : Virginia, Tyson's Corner

According to information published by the Office of Information and Regulatory Affairs, the latest regulatory plans differ from those issued in the past in that they do not include information on regulations that are either longer-term or in the pre-rule stages. Longer-term items are listed separately. Regulatory action on these long-term items is not expected to occur until more than 12 months after publication of the agenda.

Department of Labor

According to the DOL’s statement of regulatory priorities, the agency will continue to implement rules pursuant to its “Plan/Prevent/Protect” regulatory and enforcement strategy that will require businesses to establish and enforce plans for identifying and remedying labor law violations. According to the agency, employers “who fail to take these steps to comprehensively address the risks, hazards, and inequities in their workplaces will be considered out of compliance with the law and, may be subject to remedial action.” It will also undertake review of a number of existing rules to determine if more efficient and less burdensome regulatory alternatives are available. A complete list of rules the DOL plans to actively consider in the coming months can be found here.  Highlights of the DOL’s regulatory priorities are as follows:

OSHA

Of the 60 DOL rules at the pre, proposed, and final rule stages, 23 are under active consideration at the Occupational Safety and Health Administration (OSHA). In addition to targeting specific hazards, OSHA announced that it is “focusing on systematic processes that will modernize the culture of safety in America's workplaces and retrospective review projects that will update regulations and reduce burdens on regulated communities.” OSHA is in the process of evaluating the need for rules governing standards for bloodborne pathogens and infectious diseases in healthcare and other related high-risk environments. OSHA plans to issue a proposed standard on crystalline silica exposure in February 2012.

Also under development is a proposed rule implementing a new injury and illness prevention program (I2P2). OSHA describes the I2P2 rulemaking as the prototype for the Department's Plan/Prevent/Protect strategy. As discussed in the DOL’s statement of regulatory priorities, this proposal

will explore requiring employers to provide their employees with opportunities to participate in the development and implementation of an injury and illness prevention program, including a systematic process to proactively and continuously address workplace safety and health hazards. This rule will involve planning, implementing, evaluating, and improving processes and activities that promote worker safety and health hazards. OSHA has substantial evidence showing that employers that have implemented similar injury and illness prevention programs have significantly reduced injuries and illnesses in their workplaces.

According to the agenda, the agency intends to convene the Small Business Advocacy Review panel on this regulation this month.

The agency also has proposed changes to its reporting system for occupational injuries and illnesses that it contends “would enable a more efficient and timely collection of data and would improve the accuracy and availability of the relevant records and statistics.” OSHA is scheduled to complete its review of public comments on the proposal in May of this year.

OSHA also intends to issue final rules governing procedures for processing whistleblower retaliation complaints under various whistleblower statutes under the agency’s jurisdiction, including those created by the Dodd-Frank Wall Street Reform and Consumer Protection Act and the Affordable Care Act.

A final rule on a revised Hazard Communication Standard is also anticipated to be issued in February of this year. OSHA is embarking on a review of its chemical standards, beginning with developing a request for information seeking input from the public to help the agency identify effective ways to address occupational exposure to chemicals.

Notably, regulations addressing occupational exposure to beryllium and food flavorings containing diacetyl and diacetyl substitutes, a standard for combustible dust, and a rule revising occupational injury and illness recording and reporting requirements to include a column for musculoskeletal disorders (MSD) are now considered longer-term regulatory efforts with no set issue date.

OFCCP

The Office of Federal Contract Compliance Programs (OFCCP) intends to issue a number of proposed and final rules governing contractor affirmative action and nondiscrimination requirements. A proposed rule revising construction contractor affirmative action requirements is slated to be released in April 2012. The OFCCP plans to propose new sex discrimination guidelines by this time period as well. According to the agency, current guidelines are “more than 30 years old and warrant[] a regulatory lookback.” In April 2012, the OFCCP plans to issue a proposal “to create sex discrimination regulations that reflect the current state of the law in this area.”

The agency is still considering comments it solicited regarding plans for a new compensation data collection tool “to identify contractors likely to violate” sex- and race-based compensation discrimination laws, as well as those it receives in response to its proposed rule governing affirmative action and nondiscrimination obligations of contractors and subcontractors regarding individuals with disabilities. The OFCCP issued the proposed rule on this topic in December 2011.

By July 2012, the agency plans to issue a final rule on revised contractor affirmative action requirements for veterans.

EBSA

The Employee Benefits Security Administration (EBSA) will focus its regulatory efforts on implementing provisions of the Affordable Care Act, as well as “expand[ing] disclosure requirements, substantially enhancing the availability of information to employee benefit plan participants and beneficiaries and employers, and strengthening the retirement security of America's workers.”

The agency also intends to issue rules “in a number of areas including pension benefit statements, participant education, and fiduciary guidance.” Among other regulatory items, the EBSA plans to re-propose a rule that would clarify who constitutes a “fiduciary” under ERISA when providing investment advice to retirement plans and other employee benefit plans. The revised proposal is expected to be issued in May 2012. After withdrawing the initial proposal, the EBSA in September 2011 announced that it had decided to re-propose this rule. 

With respect to pension benefit statements, the EBSA “is working on a proposed rule under ERISA section 105 that would require or facilitate the presentation of a participant's accrued benefits; i.e., the participant's account balance, as a lifetime income stream of payments, in addition to presenting the benefits as an account balance.” This proposal is expected to be released by June 2012. 

EBSA will be finalizing amendments to the disclosure requirements applicable to plan investment options, including Qualified Default Investment Alternatives, to better ensure that participants understand the operations and risks associated with investments in target date funds. In addition, EBSA will be issuing a final rule addressing the requirement that administrators of defined benefit pension plans annually disclose the funding status of their plan to the plan's participants and beneficiaries. Final rules on target date disclosures and annual funding notices are slated for release in April and May of this year, respectively.

The agency also is planning to propose changes to the rules governing the internal claims and appeals process. EBSA recently proposed a rule that would implement reporting requirements for multiple employer welfare arrangements (MEWAs) and certain other entities that offer or provide health benefits for employees of two or more employers. The proposal amends existing reporting rules to incorporate new requirements enacted as part of Affordable Care Act and to more clearly address the reporting obligations of MEWAs that are ERISA plans.

OLMS

In June 2011 the Office of Labor Management Standards (OLMS) issued a proposed  rule regarding employer and consultant “persuader activity” reporting under the Labor Management Reporting and Disclosure Act (LMRDA). Specifically, the DOL proposed to broaden the scope of reportable activities by substantially narrowing its interpretation of the “advice exemption” in Section 203(c) of the LMRDA. According to the agency’s regulatory agenda, the OLMS plans to issue a final rule on this matter by August 2012. If the proposal is finalized, employers (and their advisors, including legal counsel) will have to treat activities that have not been reportable for the past 50 years as now subject to reporting requirements, which potentially could result in substantial interference with an employer’s attorney-client relationship, disrupt an employer’s ability to obtain legal advice when confronted by union campaigns, and have a chilling effect on employer free speech during such campaigns. Rulemaking seeking changes to the Form LM-21, Receipts and Disbursements Report, which is required pursuant to section 203(b) of LMRDA, is slated for long-term action with no set date. The rulemaking will propose mandatory electronic filing for Form LM-21 filers, and it will review the layout of the Form LM-21 and its instructions, including the detail required to be reported.

WHD

In past regulatory agendas the DOL’s Wage and Hour Division had stated that it would issue a proposed rule that would update the recordkeeping regulations under the Fair Labor Standards Act (FLSA) “in order 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” and to “clarify that the mandatory manual preparation of ‘homeworker’ handbooks applies only to employers of employees performing homework in the restricted industries.’ According to the current agenda, it appears the WHD has put this “Right to Know” rulemaking effort on the back burner, as no date for the proposal’s issuance has been set.

The agency’s regulatory agenda also includes changes to the application of the FLSA to domestic service. The comment period on the proposed rule ends February 27, 2012. According to the agenda, this month the Department plans to propose amendments to the regulations implementing the Family and Medical Leave Act to incorporate amendments made by the National Defense Authorization Act for FY 2010 and the Airline Flight Crew Technical Corrections Act.

Equal Employment Opportunity Commission

The EEOC’s statement of regulatory priorities includes only one substantive item: “Disparate Impact and Reasonable Factors Other Than Age Under the Age Discrimination in Employment Act.” This rule purports to clarify the meaning of the “reasonable factors other than age” (RFOA) defense used against an Age Discrimination in Employment Act (ADEA) claim and the disparate impact burden of proof under the ADEA. In Smith v. City of Jackson, the U.S. Supreme Court held that disparate impact claims were cognizable under the ADEA, and that an employer could use RFOA as a defense against such a claim. To that end, in March 2008, the EEOC issued a notice of proposed rulemaking (NPRM) regarding disparate impact claims under the ADEA. In this NPRM, the EEOC asked whether more information was needed on the meaning of RFOA in this context. In light of the 2008 U.S. Supreme Court opinion in Meacham v. Knolls Atomic Power Lab, in which the Court held that the employer bears the burden of production and persuasion when using a RFOA defense in an ADEA case, and comments it received from its NPRM, the EEOC issued a new NPRM to address the scope of the RFOA defense in February 2010. According to the EEOC’s agency rule list, a final regulation on this topic was scheduled to be issued by the end of 2011. The agency approved by a 3-2 vote a final draft of this rule in November 2011. The final rule currently is under review by the Office of Management and Budget.

The EEOC also intends to issue a proposed rule that would update its race and ethnicity data collection method to conform with current reporting instructions for the EEO-1 Report, making employee self-identification the preferred method for collecting race and ethnic data on employees. This proposal as well as final rule amending its current Title VII and ADA recordkeeping regulations to address recordkeeping obligations under the Genetic Information Nondiscrimination Act (GINA) are expected to be released shortly.

National Labor Relations Board

In December, the National Labor Relations Board issued a final rule that will radically change representation election procedures. The initial proposal contained even more extensive changes. The regulatory agenda notes that the Board is “continuing to deliberate on the rest of the proposed amendments and expects to address them in a subsequent final rule.” The release date for a final rule incorporating the omitted representation election proposals remains “to be determined.”

Additional information on the unified and regulatory agendas can be found here.

Photo credit: istockphoto

Leppink similarly avoided direct responses to questions about the agency’s worker misclassification initiatives. She noted that by April 2011, the WHD intends to publish a proposed rule updating the recordkeeping regulation issued under the FLSA “to assist employers in planning to protect workers' entitlement to wages that they have earned and bring greater transparency and openness to the workplace.” According to Leppink, the proposal would address notification of workers' status as employees or some other status such as independent contractors, and state whether that worker is entitled to the protections of the FLSA. Leppink also said the WHD is “exploring” whether to require employers to provide a wage statement each pay period to their workers.

Leppink was also asked about the process and type of information that will be provided to plaintiffs’ attorneys under the new DOL-ABA attorney referral. In response, Leppink stated that WHD and the American Bar Association have announced an unprecedented collaboration providing for an Attorney Referral System. When FLSA or FMLA complainants are informed that the WHD is declining to pursue their complaints, they may also be given a toll-free number to contact the newly created ABA-Approved Attorney Referral System. In addition, Leppink said that WHD will provide prompt relevant information and, where available, documents on the case may be provided to complainants and representing attorneys, but she provided no further details on the program.

Additionally, Leppink said that the agency is currently conducting directed investigations and increasing its presence in a number of key industries where, she claims, worker misclassification is most prevalent: construction; janitorial; home health care; child care; transportation and warehousing; meat and poultry processing; and other professional and personnel service industries.

With respect to another item on the WHD’s regulatory agenda, Leppink said she anticipates the issuance of a final rule addressing a number of statutory amendments and proposed changes to several different FLSA regulations “soon.” 

The Department of Labor’s web chats scheduled for this week are designed to solicit questions regarding the agency’s recently published semiannual regulatory agenda. Michaels noted during the chat that two new initiatives contained in the Agenda focus on hazards in the high risk construction industry: Backing Operations and Reinforcing and Post-Tensioned Steel Construction. Other highlights of the chat include the following:

• OSHA's highest regulatory priority is the injury and illness prevention program rule (I2P2). According to Michaels, this rule will have the greatest impact in terms of preventing workplace injuries, illnesses and fatalities. Michaels said that the agency is moving toward requiring employers to have injury and illness prevention programs.
• While the musculoskeletal disorder (MSD) column will likely be added to the Form 300 log starting January 2012, OSHA said it has no plans to re-propose an ergonomics rule, which many in the business community had feared would follow.
• With respect to a standard on combustible dust, Michaels said while no final rule issuance date can be predicted at this time, OSHA plans to initiate its Small Business Regulatory Enforcement Fairness Act (SBREFA) process in April. According to Michaels, the SBREFA process takes about 120 days to complete.
• As for a diacetyl standard, Michaels claimed OSHA is working with the National Institute of Occupational Safety and Health (NIOSH) to develop the risk assessment process in formulating a standard. Michaels predicted that by April 2011, the agency would begin the peer review component of the health effects and risk assessment process. According to Michaels, OSHA does not have a set period for the length of these reviews, but estimated that they take approximately 4 to 6 months to complete depending on the complexity of the analysis involved.

Photo credit: photodora.com

Borzi also noted that the agency plans to propose amendments to current regulations that would clarify the circumstances under which a person would be considered a “fiduciary” when providing investment advice to employee benefit plans and their participants and beneficiaries of such plans. The EBSA plans to hold a public hearing on this topic on March 1, 2011. In addition, the EBSA intends to proceed with its “lifetime income” initiative, “which involves consideration of steps we can take to encourage the offering of lifetime income options to participants and beneficiaries of defined contribution plans and the education of participants and beneficiaries with respect to such options.”

Several chat participants posed questions regarding the interim final regulations governing the internal and external review for denied health claims. For example, one person asked whether, with respect to a non-grandfathered, self-funded group health plan, the new internal claims rules under the Affordable Care Act apply in a situation where there is no rescission of a benefit eligibility determination, but rather a prospective termination. Borzi responded that “If there is no rescission of coverage, the prospective cancellation of coverage is not, itself, subject to internal appeal. However, if the individual has a claim denied for ineligibility, that claim may be appealed under the Department’s regulation.” Similarly, for such non-grandfathered, self-funded group health plans, rescission of coverage would be deemed an adverse benefit determination eligible for internal appeals. Borzi further clarified that while an employee’s contribution towards premiums is not an adverse benefit determination that can be appealed, an employee’s cost-sharing (e.g., coinsurance, co-payment, deductible) can be a partial denial of a claim and thus subject to appeal.

Another chat participant asked whether a health plan that is part self-insured is subject to federal and state external review processes. In response, Borzi explained that if “the plan is not a grandfathered health plan, to the extent it is insured, the health insurance issuer is responsible for complying with applicable state law. To the extent the plan is self-insured, the federal rules would apply.”

Other highlights of the web chat include the following:

• In response to a question regarding electronic delivery of ERISA-mandated disclosure documents, Borzi claimed that the agency intends to issue within the next six to eight weeks a Request for Information (RFI) to help the EBSA evaluate “whether, and possibly how, the current regulatory standards for electronic distribution of required plan disclosures under ERISA should be updated to reflect changes in technology and the workplace.”
• With respect to whether delivering a prospectus would satisfy the requirements contained in the target date fund disclosure proposed rule, Borzi clarified that “the new target date fund disclosure proposal would amend two existing regulations – the QDIA Regulation and the Participant-Level Disclosure Regulation. It is not likely that the delivery of a prospectus will, in and of itself, satisfy the requirements of the proposal. However, information from a current prospectus may be used to satisfy at least some of the content requirements of the proposal.” Borzi noted that at this time, the agency has no plans to develop a model format for the disclosures.
• Regarding late filing of Form 5500, Borzi reiterated that if the form is filed late after an extension is given, a civil penalty is calculated from the original due date.

A complete transcript of the web chat can be found here.

Photo credit: maxexphoto

Health and Safety

• OSHA is developing a rule requiring employers to implement an Injury and Illness Prevention Program. The rule would include planning, implementing, evaluating and improving processes and activities that protect employee safety and health. Stakeholder meetings on the initiative have already begun.
• OSHA will consider drafting rules on occupational exposure to beryllium, food flavorings containing diacetyl and diacetyl substitutes, blood borne pathogens, and infectious diseases.
• At the proposed rule stage, OSHA plans to issue proposed rules governing the occupational exposure to crystalline silica. This proposed rule is scheduled to be issued by April 2011. OSHA is also drafting a proposed rule on combustible dust, but no Notice of Proposed Rule Making (NPRM) release date has been set. Other regulations at the proposed rule stage include those governing walking working surfaces and personal fall protection systems, and occupational injury and illness recording and reporting requirements.
• As for final rules, OSHA intends to issue a final rule on confined spaces in construction by November 2011.
• With respect to work-related musculoskeletal disorders, by February 2011 OSHA claims it will issue a final rule amending the occupational injury and illness recording and reporting requirements to include a Musculoskeletal Disorders (MSD) Column on the 300 Log. 
• By May 2011, OSHA plans to issue a final rule on electric power transmission and distribution, and electrical protective equipment.
• As for the whistleblower provisions of many of the statutes OSHA enforces, including the employee protection provisions of the Consumer Financial Protection Act of 2010, Section 1057 of the Dodd-Frank-Wall Street Reform and Consumer Protection Act, the Affordable Care Act, and the Consumer Product Safety Improvement Act, the agency plans to issue interim final regulations on these provisions by September 2011.

Employee Benefits

Next to workplace safety initiatives, the next largest percentage of rulemaking activity will focus on employee benefits. After issuing six final rules in the past six months, the Employee Benefits Security Administration (EBSA) lists 19 separate regulatory actions it plans to take in the coming months. Some of these regulations include the following:

• The EBSA intends to issue proposed rules addressing such issues as annual funding notices, pension benefit statements, the definition of “fiduciary”, improved fee disclosure for welfare plans, target date disclosures, and amendments to claims procedures.
• By April 2011, the EBSA plans to issue its final rule on improved fee disclosure for pension plans.
• A final rule addressing the statutory exemption for the provision of investment advice is scheduled to be issued by May 2011. 
• EBSA will also begin rulemaking to implement the automatic enrollment provision of the Patient Protection and Affordable Care Act (“Affordable Care Act’), which applies to employers with more the 200 full-time employees and who over enroll in one or more health benefit plans. The Agency plans to issue a request for information by May 2011. The Agency will also continue its development of other rulemaking activities under the Affordable Care Act.

Wage and Hour

• The DOL’s Wage and Hour Division (WHD) plans to issue regulations implementing the Family and Medical Leave Act (FMLA) to incorporate amendments made by the National Defense Authorization Act for FY 2010 and the Airline Flight Crew Technical Corrections Act. A NPRM is slated to be issued by February 2011.
• By April 2011, the WHD plans to issue a NPRM to update the recordkeeping regulations under the Fair Labor Standards Act (FLSA) in order 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.” Proposed rules were originally expected before the end of this year.
• The WHD also plans to clarify that the mandatory manual preparation of "homeworker" handbooks applies only to employers of employees performing homework in the restricted industries.
• The WHD also plans to issue by October 2011 a proposed rule that would apply the FLSA to domestic service workers.
• By March 2011, the WHD intends to issue a final rule implementing Executive Order 13495 – Nondisplacement of Qualified Workers Under Service Contracts – which establishes the policy that federal service contracts generally include a clause requiring the contractor and its subcontractors, under a contract that succeeds a contract for the same or similar service at the same location, to offer qualified employees (except managerial and supervisory personnel) employed on the predecessor contract a right of first refusal to employment under the successor contract.

Office of Labor Management Standards

• The OLMS is actively considering drafting a rule that would allow internet balloting in union officer elections.
• By June 2011, the OLMS plans to issue a proposed rule that would revise the interpretation of section 203(c) of the Labor-Management Reporting and Disclosure Act (LMRDA). That statutory provision creates an "advice" exemption from reporting requirements that apply to employers and other persons in connection with persuading employees about the right to organize and bargain collectively. A proposed revised interpretation would narrow the scope of the advice exemption.

Office of Federal Contract Compliance Programs

• The OFCCP will soon issue a proposed rule with request for comments on its plan to revise regulations implementing the nondiscrimination and affirmative action provisions of the Vietnam Era Veterans Readjustment Assistance Act (VEVRAA). This NPRM would strengthen the affirmative action requirements for federal contractors and subcontractors. According to the OFCCP, the NPRM would amend the regulations to require that federal contractors and subcontractors conduct more substantive analyses of recruitment and placement actions taken under VEVRAA and would require the use of numerical targets to measure the effectiveness of affirmative action efforts. The NPRM would also make revisions to recordkeeping requirements.
• By July 2011 the OFCCP also intends to issue a NPRM to revise the regulations in 41 CFR part 60-4 implementing the affirmative action requirements of Executive Order 11246 that are applicable to federal and federally assisted construction contractors. According to the agency, the proposed rule would “strengthen and enhance the effectiveness of the affirmative action program requirements for Federal and federally-assisted construction contractors and subcontractors, particularly in the area of recruitment and job training.”
• In another proposed rule dealing with affirmative action, the OFCCP plans to issue a NPRM that “would strengthen the affirmative action requirements for Federal contractors and subcontractors. The NPRM would amend the regulations to require that Federal contractors and subcontractors increase linkages and conduct more substantive analyses of recruitment and placement actions taken under section 503. The NPRM would also make revisions to recordkeeping requirements.”

With respect to the proposed change in recordkeeping requirements, Leppink explained that the WHD expects “this update to promote transparency and encourage greater levels of compliance by employers. We also expect the regulation to enhance awareness among workers of their status as employees or independent contractors, as well as enhance awareness of employee rights, and entitlements to minimum wage and overtime pay.” According to a fact sheet on this proposal, such a rule would require:

covered employers to notify workers of their rights under the FLSA, and to provide information regarding hours worked and wage computation. Any employers that seek to exclude workers from the FLSA’s coverage will be required to perform a classification analysis, disclose that analysis to the worker, and retain that analysis to give to WHD enforcement personnel who might request it. The proposal will also address burdens of proof when employers fail to comply with records and notice requirements.

During the Q&A session Leppink also noted that the DOL is “working to develop a proposal that will address the recordkeeping on live-in domestic employees and industrial homeworkers.”

In addition, the DOL plans to review the FLSA regulations as they apply to home service workers. As stated in a DOL fact sheet on this proposal, the agency plans to “update the companionship services regulations in order to clarify when domestic service employees, who provide companionship services to the aged or infirm, are exempt from the minimum wage and overtime provisions of the FLSA.” As part of this rulemaking effort, the agency plans to consider “whether the current exemption of companions working for a party other than the family or household using the companionship services is consistent with the status of a companion in light of significant changes in the home care industry.” In addition, the DOL intends “to address the scope of training required to render a worker ‘trained personnel’ excluded from the companionship exemption, and the amount of household work that may be performed by the worker without losing the companionship exemption.”

A notice of proposed rulemaking (NPRM) on the recordkeeping requirements is scheduled to be issued by August 2010. A NPRM on the application of the FLSA to domestic service workers is considered a longer-term project, and will not likely be issued until October 2011.

• The Office of Federal Contract Compliance Programs (OFCCP) plans to issue proposed regulations on construction contractor affirmative action requirements as well as proposed regulations requiring that federal contactors and subcontractors conduct more substantive analysis of recruitment and placement actions taken under the Vietnam Era Veterans’ Readjustment Act. The OFCCP also plans to seek public comment on improving employment opportunities for individuals with disabilities.
• The Office of Labor Management Standards (OLMS) intends to propose a rule that would narrow the scope of the interpretation of section 203(c) of the Labor-Management Reporting and Disclosure Act (LMRDA). This section creates an “advice” exemption from reporting requirements that apply to employers in connection with persuading employees about the right to organize and bargain collectively. A notice of proposed rulemaking (NPRM) is estimated to be issued by November 2010.
• The OLMS plans to issue a final rule by June 2010 on a standard prescribing the size, form, and content of the notice to be posted by a contractor that describes the rights of employees under federal labor laws. Executive Order (E.O.) 13496 – Notification of Employee Rights under Federal Labor Laws – directed the OLMS to create regulations regarding the notice.
• The Wage and Hour Division (WHD) plans to issue a final rule by the end of 2010 to implement the provisions of E.O. 13495, Nondisplacement of Qualified Workers under Service Contracts. This E.O. requires that any federal service contracts and solicitations for such contracts include a clause requiring contractors and their subcontractors to offer existing employees the right of first refusal to take positions for which they are qualified under the new contract.
• The WHD also intends to issue a NPRM by November 2010 to implement the National Defense Authorization Act, which expanded existing military family leave entitlements, and the Airline Flight Crew Technical Corrections Act, which expanded Family and Medical Leave Act (FMLA) eligibility requirements to include airline flight crews. According to the regulatory agenda, the DOL “is reviewing the implementation of these statutory amendments and other revisions of the current regulations.”
• The WHD plans to issue a NPRM by August 2010 of its intent to update the recordkeeping regulations under the Fair Labor Standards Act (FLSA) “in order to enhance the transparency and disclosure to workers of how their pay is computed, and to modernize other recordkeeping requirements for employees under ‘telework’ and ‘flexiplace’ work arrangements.”
• Considered a longer term action, the WHD intends to update the FLSA regulation: Application of the FLSA to Domestic Service, that would possibly subject certain currently exempt home care workers to FLSA coverage. The agency plans to issue a NPRM by October 2011.
• The Occupational Safety and Health Administration’s (OSHA) regulatory agenda includes prerule action on occupational exposure to beryllium and diacetyl, and a review of the Methylene Chloride Standard and the Bloodborne Pathogens Standard. OSHA plans to issue a NPRM on chrystalline silica by February 2011 and a final rule on cranes and derricks in construction by July 2010.

DOL will host live Web chats to discuss the regulatory agenda at the following times:

Monday, April 26

Office of Labor-Management Standards Web chat: 11 a.m. to noon EDT

Occupational Safety and Health Administration Web chat: 1 to 2 p.m. EDT

Employee Benefits Security Administration Web chat: 2 to 3 p.m. EDT

Tuesday, April 27

Office of Federal Contract Compliance Programs Web chat:  9 to 10 a.m. EDT

Wednesday, April 28

Wage and Hour Division Web chat: 9 to 10 a.m. EDT

Mine Safety and Health Administration Web chat: 10 to 11 a.m. EDT

• The Wage and Hour Division (WHD) plans to update the recordkeeping requirements under the Fair Labor Standards Act (FLSA) to require employers to, among other things, disclose to employees each pay period how many hours were worked, how much pay was computed, whether proper wages and overtime were included for hours worked, and what deductions were made. Solis noted that the proposed regulations would “increase transparency” to enhance a worker’s awareness of their entitlement to minimum wage and overtime pay each time they receive their paychecks.
• With respect to Americans and foreign nationals working temporarily in the U.S., the Employment and Training Administration (ETA) plans to amend the H2-B worker regulations to clarify an employer’s need for temporary foreign national workers, and ensure that citizen workers are fully considered before resorting to foreign labor.
• The DOL believes that the scope of section 203(c) of Labor-Management Reporting and Disclosure Act (LMRDA) – which provides, in part, that employer and consultant reporting is not required with respect to any agreement or arrangement to provide “advice” to the employer – is too broad and excludes information that should be reported. The Office of Labor-Management Standards (OLMS) seeks to narrow this advice reporting exemption to “better allow for the employer and consultant reporting intended by the LMRDA” and to “provide workers with information critical to their effective participation in the workplace.”
• The Office of Federal Contract Compliance Programs (OFCCP) will seek comments for a proposal to strengthen affirmative action requirements to increase job opportunities for veterans and the disabled.
• In the wake of the H1N1 Influenza Pandemic, the Occupational Safety and Health Administration (OSHA) will seek information on its proposed standard for airborne infectious diseases, and whether current infection control procedures are adequate to protect workers.
• The Mine Safety and Health Administration (MSHA) will publish a rule to decrease coal miners’ exposure to coal mine dust and reduce the instances of black lung disease.
• The Employee Benefits Security Administration (EBSA) plans to work with the Treasury Department to determine the best way to enhance an employee’s retirement security and facilitate access to lifetime income streams after retirement, and to encourage employers to offer their employees retirement annuities. A fact sheet on this regulatory effort can be found here.

The DOL notes that the agency’s regulations currently open for public comment include Temporary Agricultural Employment of H-2A Aliens in the United States, Interim Final Rule; Request for Information Regarding Sections 101 Through 104 of the Genetic Information Nondiscrimination Act of 2008; Hazard Communication, Proposed Rule; and Respirable Coal Mine Dust: Continuous Personal Dust Monitor (CPDM), Request for Information.

Three rules that are slated for periodic review under Section 610 of the Regulatory Flexibility Act to determine whether they should be continued without change, amended, or rescinded to minimize its impact on small entities, are OSHA’s rules governing Methylene Chloride and Bloodborne Pathogens, and the EBSA’s Plan Assets-Participant Contributions Regulation.

On December 7, 8 and 9 the DOL’s website will conduct chats hosted by the heads of the Occupational Safety and Health Administration, the Office of Labor-Management Standards, the Wage and Hour Division, the Employment and Training Administration, the Mine Safety and Health Administration, the Office of Federal Contract Compliance Programs and the Employee Benefits Security Administration. The public may submit questions to these chats via e-mail to Webmaster@dol.gov.

This entry was written by Ilyse Schuman.

Health Care/Employee Benefits

A number of federal agencies are requesting information on the mental health parity provisions made by the Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA) in advance of a future rulemaking on group health plans.  Meanwhile, legislation providing employers with various incentives for promoting employee health may receive serious consideration now that Congress is contemplating major healthcare reform.

Immigration

The Department of Homeland Security has issued a fact sheet discussing its revised Worksite Enforcement Strategy, which will increase efforts to target employers in violation of immigration law.

Work/Family Balance

The Wage and Hour Division of the Department of Labor has issued an opinion letter clarifying that an employer’s internal notification policy regarding employee attendance can be enforced against an employee attempting to take leave under the Family and Medical Leave Act (FMLA) so long as compliance with the notice policy is practicable given the employee’s particular circumstances.