In this two-part series of blog posts we will examine the regulatory agenda of the U.S. Department of Labor’s (DOL) Wage and Hour Division.

Late last year, the Wage and Hour Division (WHD), along with other regulatory agencies of the DOL, released its fall 2012 regulatory agenda. The agenda should have been released earlier in the year but may have been delayed until after the November 2012 elections. Regardless of the reasons for its delay, the DOL’s regulatory agenda focused on three major strategies: (1) a “Plan/Prevent/Protect” compliance strategy, (2) an openness and transparency commitment, and (3) risk reduction to employees.

Through its Plan/Prevent/Prevent strategy, the DOL seeks to achieve compliance with its workplace laws each and every day—not just when an enforcement investigator or inspector performs an audit. As for greater openness and transparency, the DOL’s goal is to provide greater access to information to employers, employees, and other stakeholders so that enhanced awareness and knowledge of rights and responsibilities would result in greater levels of compliance. Finally, the beneficiary of Plan/Prevent/Protect and openness and transparency is risk reduction for employees who will enjoy safer worker environments, will earn fair pay and overtime, will secure benefits to which they are entitled, and will have a diverse, family-friendly work environment.

WHD Rules

Only two of the WHD’s rules were included in the regulatory list of the DOL’s rules. One is the regulation to implement the amendments to the Family and Medical Leave Act (FMLA). This final regulation was published in the Federal Register on Wednesday, February 6, 2013, and becomes effective on March 8, 2013. To view the final regulation, click here. For our summary of the final regulation, click here.

The other WHD regulation included in the DOL’s list concerns applying the Fair Labor Standards Act (FLSA) to domestic servants. This regulatory proposal is based upon section 13(a)(15) of the FLSA, which exempts domestic servants who provide companionship services from the minimum wage and overtime protections. In its proposed rule on which it solicited comments, the WHD proposed a new definition of what constitutes “companionship services,” among other changes, to narrow the definition in order to enable these workers to be eligible for overtime compensation. The DOL published its proposed rule on December 27, 2011, and the comment period ended on March 21, 2012. We anticipate that the WHD will publish its final regulation by late March or early April 2013.

For part two of our update on the WHD’s regulatory agenda, click here.


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Ogletree Deakins’ Wage and Hour Practice Group features attorneys who are experienced in advising and representing employers in a wide range of wage and hour issues, and who are located in Ogletree Deakins’ offices across the country.

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