New Regulatory Agenda Contains Surprises

The U.S. Department of Labor’s (DOL) just-released Fall 2015 Semiannual Regulatory Agenda and Plan Statement contains several surprises for federal labor and employment rulemaking. Although the timetables are often aspirational and not met, the announced agency goals for regulatory actions nevertheless provide a clear indication of the priorities of the DOL and of other federal agencies.

“Persuader” Rule to be Finalized in March 2016

Among the most surprising deadlines for final agency action was the DOL’s “persuader activity” revised regulation under the Labor-Management Reporting and Disclosure Act, which is now listed for final issuance in March 2016. The DOL’s proposed revision to the “persuader activity” regulation has been broadly opposed by the American Bar Association, several state attorneys general, and scores of business groups because of its interference in attorney-client relationships and communications during union organizing campaigns. In effect, the proposed revision would chill the ability of law firms to consult with employers by restricting the well-established “advice exemption.”

Surprisingly, revisions to the LM-21 reporting form to implement reporting of “persuader” activities and all other labor relations services for all clients is not listed for final action until September of 2016. Thus, if the timetable is accurate, the information needed to comply with the March 2016 persuader activity regulations would not be available until September of 2016—six months later. This would seem to “put the cart before the horse.” The rule and the form are integrally intertwined and ought to be considered together—that is, after notice and comment rulemaking for revisions to the LM-21 Form.

“Blacklisting Regulation” to Be Finalized in April 2016

Another surprising announcement in the new regulatory agenda is that the so-called “blacklisting regulation” to be issued by the Federal Acquisition Regulatory (FAR) Council with guidance from DOL has now been delayed, until April 2016. The DOL has listed the regulations implementing the Fair Pay and Safe Workplaces Executive Order 13673—the so-called “government contractor blacklisting” proposal—as a “long-term” action.

The proposed blacklisting regulation would require federal contractors and subcontractors for goods and services of at least $500,000 to report all labor and employment “violations” for the prior three years under 14 federal laws and all “equivalent state laws.” Under the proposed regulation, reportable violations include “administrative merits determinations,” which are defined as requiring the reporting of all complaints issued by the National Labor Relations Board and other federal agencies even before adjudication. The information reported by federal contractors and subcontractors, as well as “other information” supplied by outside sources (such as unions to leverage organizing and bargaining demands), would then be considered by federal contracting officers in making eligibility determinations for the award of federal contracts, which could possibly lead to bid denial, suspension, and debarment. The proposal also would bar contractors under federal contracts of $1 million where the contractor’s agreements mandate arbitration of actions brought under Title VII of the Civil Rights Act and related tort claims. It also requires disclosure and justifications of employment classifications to employees.

Finally, the much-anticipated revisions to the Fair Labor Standards Act’s Part 541 overtime regulations are listed for final action by DOL’s Wage and Hour Division in July 2016. The Department is described as reviewing the thousands of regulatory comments received this past summer.