On May 9, 2018, the U.S. Department of Labor (DOL), the National Labor Relations Board (NLRB), and the U.S. Equal Employment Opportunity Commission (EEOC) released their spring 2018 regulatory agendas. There were a few surprises.
The NLRB announced for the first time that it may consider rulemaking to resolve the legal standard governing joint employment. The NLRB’s 2018 spring agenda identifies a notice of proposed rulemaking (NPRM) for a joint employer standard as a “long term” objective, scheduled for a date that is “to be determined.” The Board’s earlier attempt to reverse its Browning-Ferris decision on joint employment in its December 14, 2017, Hy-Brand decision was blocked by a novel ruling from the agency’s inspector general that, in effect, precluded the issue from being heard by Board members whose former law firms even took a position on Browning-Ferris, even though the party before the Board had no connection with a Board member for purposes of recusal. The inspector general’s expansive interpretation of recusal by a “preclusion” standard would seem to apply to future cases as well, thus insulating Browning-Ferris. Similarly, efforts by Congress to pass legislation overturning the Browning-Ferris decision are expected to be blocked by a Senate filibuster, preventing the bill from advancing to the Senate floor for a vote. Rulemaking, therefore, as suggested by the NLRB’s spring 2018 regulatory agenda might be the best—and perhaps the only—option.
Several noteworthy regulatory actions are identified by the EEOC, which lists seven planned regulatory actions in its spring 2018 agenda. For example, it targets final action on incentives for employer-sponsored wellness programs under the Americans with Disabilities Act of 1990 (ADA) and the Genetic Information Nondiscrimination Act of 2008 (GINA) in an NPRM scheduled for January 2019.
The DOL lists 49 separate regulatory actions in its spring 2018 regulatory agenda. Among them are:
- an NPRM, scheduled for January 1, 2019, setting the salary level under the Part 541 overtime exemption for executive, administrative, professional, outside sales, and computer employees;
- rescission of the rule for the “advice exemption” under section 203(c) of the Labor-Management Reporting and Disclosure Act (i.e., the persuader rule), an action that is scheduled for May 2018;
- an NPRM, scheduled for August 2018, withdrawing the DOL’s 2017 NPRM regarding the tip credit under section 3(m) of the Fair Labor Standards Act and aligning itself with recent Congressional actions;
- an NPRM, scheduled for September 2018, revising the labor standards for registration of apprenticeship programs;
- an NPRM scheduled for July 2018 to reconsider, revise, or remove the Occupational Safety and Health Administration’s (OSHA) electronic recordkeeping requirements; and
- revisions to a variety of other OSHA rules, including the rules concerning occupational exposure to crystalline silica and beryllium.
There are several rules proposed for the first time in the spring 2018 regulatory agenda, among them is an NPRM scheduled for September 2018 to “clarify, update and define” the “regular rate of pay” for calculating overtime compensation for hours worked over 40 in one workweek as defined under 29 C.F.R. Part 778 and provided for in Section 7(e)(2) of the Fair Labor Standards Act.
Each agency’s regulatory agenda is proposed semi-annually. Often, projected regulatory actions are delayed. Sometimes proposed regulations are extended and remain on the agenda for years. However, the list of new or proposed regulations reveals the administration’s policy direction.