Agencies Update Regulatory Agenda for 2019 and Beyond

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The federal government's Spring 2019 Unified Agenda of Regulatory and Deregulatory Actions (regulatory agenda), which provides insight into federal agencies' priorities for the near and long term, was released on May 22, 2019. The latest regulatory agenda provides revised rulemaking timelines, and includes some new areas of focus. This article highlights some notable rules and their projected progress through the rulemaking process.
 
Department of Labor (regular rule list; long-term list)
The Department lists a number of proposed regulations on its agenda, following a flurry of regulatory activity in March and April 2019, when it issued three significant proposed rules within two weeks.1 Many in the employer community have been eyeing progress of the following items.
 
Wage and Hour Division (WHD)
  • Joint Employment. The Notice of Proposed Rulemaking (NPRM) will propose updates on how businesses can determine whether they are "joint employers" for purposes of the Fair Labor Standards Act. The original NPRM comment period ended on June 10, 2019, but was extended to June 25. The WHD has not set a projected date for this final rule.

  • White-Collar Overtime Exemption. Comments closed on May 21, 2019 for the NPRM period regarding appropriate salary cut-offs for exempted white-collar employees. The WHD noted that the Department will "be informed by comments received in response to its NPRM" in the final rule, but does not give an estimate on when the final rule will be released.

  • Regular Rate. The WHD is proposing to update regular pay rate requirements for the purpose of determining overtime pay to help employers determine whether "more modern" forms of compensation should be included in the regular rate of pay. The comments on this proposed rule close on May 28, 2019, but no final rule date was provided.

  • Tip Regulations. The DOL has pushed out to December 2019 the NPRM regarding how the Department will align 2018 FLSA amendments for tip ownership with DOL regulations. The rulemaking will also address circumstances for when employers may take a tip credit to satisfy minimum wage requirements when employees perform "dual jobs."

  • Request for Information (RFI): The Family and Medical Leave Act of 1993. The Department is seeking comments to find ways to improve FMLA regulations to both protect and provide for the needs of workers and to reduce administrative burdens for employers. The projected date for the RFI is April 2020.
 
Office of Federal Contract Compliance Programs
  • Affirmative Action and Nondiscrimination Obligations of Federal Contractors and Subcontractors: TRICARE and Certain Other Healthcare Providers. The Office of Federal Contract Compliance Programs (OFCCP) plans to release a NPRM to implement the nondiscrimination and affirmative action provisions of Executive Order 11246, section 503 of the Rehabilitation Act, and the Vietnam Era Veterans' Readjustment Assistance Act of 1974 as related to the obligations of TRICARE or certain other healthcare providers as federal contractors and subcontractors. The proposal would limit "and otherwise alter" the obligations of TRICARE and other healthcare providers under these authorities.
 
Employee Benefits Security Administration
  • Definition of Employer Under § 3(5) of ERISA: Association Retirement Plans and Other Multiple Employer Plans. The Employee Benefits Security Administration planned to release its final rule in June 2019 to establish criteria under the Employee Retirement Income Security Act (ERISA) on what entities are "employers" that may jointly establish a pension benefit plan.2
 
Occupational Safety and Health Administration
  • The Occupational Safety and Health Administration intends to issue a proposed rule to memorialize its position that the anti-retaliation provisions in § 1904.35(b) do not ban post-incident drug testing or incident-based incentive programs. The NPRM is scheduled for publication in September 2020, so it is considered a longer-term action item.3
 
Employment and Training Administration
  • Apprenticeships. Though it has taken longer than expected, the DOL's Employment and Training Administration (ETA) is slated to issue a NPRM in June 2020 to establish guidelines for third parties to accredit high-quality, industry-recognized apprenticeship programs.
 
National Labor Relations Board (regular rule list; long-term list)
  • Joint-Employer Rulemaking. The National Labor Relations Board (NLRB) continues its work on a rule to determine what constitutes joint-employer status under the NLRA. The NPRM comment period ended in January 28, 2019, and the Board received almost 29,000 comments in response to the proposed rule. Review of those comments is underway, although a date for expected publication of a final rule was not announced in the agenda.

  • Access Rule. The NLRB expects to publish a NPRM regarding the "standards under the National Labor Relations Act for access to an employer's private property." The Notice is slated for September 2019 and may reflect an attempt by the Board to revisit its prior decision in Roundy's Inc. and Milwaukee Building and Construction Trades Council, AFL–CIO, in which the NLRB ordered a business to allow a union access to the premises.

  • Student/Employee Status. The NLRB will also release a NPRM to establish standards regarding whether student aids at a university can be considered employees under the National Labor Relations Act. This NPRM is also scheduled for publication in September 2019.

  • Blocking Charge, Voluntary Recognition, and 9(a). The Board will consider "blocking" charges, or when the NLRB can halt a decertification election, and the timing of decertification elections. These election bar policies are expected to be addressed in an August 2019 NPRM.

  • Revision of Representation Case Rules. The NLRB has issued plans to revise the representation election regulations, specifically to focus on amending the Board's representation case procedures from the rule published on December 15, 2015, otherwise known as the "quickie election" rule.4 This rulemaking had a comment period in early 2018, but the NPRM timeframe is still to be determined.
 
Equal Employment Opportunity Commission (regular rule list)
  • Amendments to Regulations Under the Americans With Disabilities Act. As expected, the EEOC plans to amend its regulations related to incentivizing employer-sponsored voluntary wellness programs under the Americans with Disabilities Act (ADA) in response to the U.S. District Court for the District of Columbia opinion in AARP v. EEOC.5 EEOC staff is working on an NPRM, which is expected in December 2019.

  • Amendments to Regulations Under the Genetic Information Nondiscrimination Act of 2008. Relatedly, the EEOC plans to issue revised wellness rules under the Genetic Information Nondiscrimination Act (GINA). The NPRM for amended regulations regarding wellness programs under the GINA are also slated for December 2019.
 
Department of Homeland Security (regular rule list)
  • Strengthening the H-1B Nonimmigrant Visa Classification Program. Out of the many proposed and final rules from the Department of Homeland Security (DHS), employers should be aware of the U.S. Citizenship and Immigration Services' intent to propose a rule to "increase focus on obtaining the best and the brightest foreign nationals via the H-1B program." This rule will propose that more requirements be added to the definition of employment and better define the employer-employee relationship. It also seeks to create additional pay requirements so that H-1B visa holders will earn appropriate wages. DHS plans to release the NPRM in August 2019.
 
What's Next?
Although the estimated completion dates on the regulatory agenda are more aspirational than set in stone, they do provide employers with a loose roadmap of where the agencies will focus their rulemaking efforts in the coming months or even years. Littler will continue to monitor these proposals and report on any notable developments.

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Footnotes
1 Tammy McCutchen, Maury Baskin and Michael J. Lotito, DOL Issues Third Proposed Rule in Two Weeks, This Time on Joint Employment, Littler ASAP (Apr. 1, 2019).
2 Ilyse Schuman, Russell Chapman, and Michael J. Lotito, DOL Issues Proposal Governing Association Health Plans, Littler ASAP (Jan. 5, 2018).
3 For discussion, see Thomas Metzger and Bryan Gramlich, OSHA Issues Final Rule Rescinding Certain Recordkeeping Requirements and Clarifying Guidance on Drug Testing and Incentive Programs, Littler ASAP (Jan. 31, 2019). The preamble to this final rule reiterates OSHA’s position regarding the drug-testing issue, but the rule itself does not specifically amend its regulations to formalize this policy, as that was not the subject of this rulemaking.
4 Alan I. Model and Jason J. Silver, The NLRB Issues its Long-Anticipated “Quickie Election” Rule, Making Union Organizing Faster and Easier, Littler Insight (Dec. 15, 2014).
5 Russell D. Chapman, EEOC Must Reconsider its Wellness Regulations, Littler ASAP (Aug. 23, 2017).