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Fall 2015 Regulatory Agenda Released

capitolhillOn November 20, the Obama administration released its autumn 2015 Unified Regulatory Agenda and Regulatory Plan, providing the public with a detailed glimpse into the regulatory policies and priorities under consideration by 59 federal departments, agencies and commissions. Agendas are released twice a year, generally in April and November. They are designed to provide the public with information on regulations the federal government is currently considering and to prioritize action items for the coming year.

The agenda sets target dates for each agency and sub-agency’s regulatory actions, from the beginning to the end of the regulatory process, and provides insight into which issues will be a short-term focus. It also includes long-term action items to allow relevant parties to begin considering the impact these regulations may have. Although the agenda reports on 3,297 rules and regulations, it contains important information on some issues on which CUPA-HR has been focused.

Revisions to Overtime Regulations
DOL’s Wage and Hour Division (WHD) has proposed revisions to the executive, administrative and professional exemptions — known as the “white collar” exemptions — under the Fair Labor Standards Act. Under the current regulations, an individual must satisfy three criteria to qualify as an exempt  “white collar” employee: first, he or she must be paid on a salaried basis (the salary basis test); second, that salary must be at least $455/week ($23,660 annually) (the minimum salary requirement or salary threshold); and third, his or her “primary duties” must be consistent with executive, professional or administrative positions as defined by DOL (the primary duties test) (note, the first two criteria do not apply to teachers or many student workers).

The revisions would increase the salary threshold to $50,440 annually and would impose annualized automatic increases thereafter. No changes are proposed to the primary duties test, but WHD asked several questions on the topic, suggesting it is considering adopting a quantification requirement similar to California’s where employees have to perform the exempt primary duties “more than 50%” of the time. CUPA-HR has been highly active in this rulemaking, submitting extensive comments on behalf of higher education and igniting a grassroots response as co-chair of the Partnership to Protect Workplace Opportunity. DOL has said a final regulation would not be out until “late 2016,” but the agenda’s targeted release date is July 2016. However, the agenda is an aspirational document, and while agencies do not generally issue regulations prior to the target date, they often release them after the target date.

Request for Information on the Impact of the Use of Electronic Devices by Nonexempt Employees on Hours Worked Issues
DOL plans to issue a Request for Information (RFI) to gather information about employees’ use of electronic devices to perform work outside of regularly scheduled work hours and away from the workplace, as well as information regarding last-minute scheduling practices being utilized by some employers that are made possible in large part by employees’ use of these devices. While there will not be sufficient time for this to become a full rulemaking, it might be used to support some form of guidance in conjunction with the overtime regulation. The agenda projects the RFI to be issued in February 2016; it had previously been projected for August 2015.

Electronic Reporting of Injury and Illness Reports
OSHA is considering a regulation that would require employers to submit their injury and illness records to the agency electronically (only) so that they could be posted to the internet. The full regulatory package includes a “supplemental” that would give OSHA authority to issue citations for violations of the whistleblower protections, even though the statute does not authorize this. The final regulatory package is under review at the Office of Information and Regulatory Affairs. The agenda projects a final regulation in March 2016. In March 2014, CUPA-HR signed onto a letter urging OSHA to withdraw the proposal.

Persuader Rule
Previously scheduled to be finalized in December 2015, the Persuader Rule is now slated for finalization in March 2016. DOL has repeatedly delayed release of the final rule, which will likely significantly change employer and consultant reporting requirements in the labor relations arena. Under existing law, if an employer hires an outside consultant, including an attorney, to “persuade” employees with respect to their rights under the National Labor Relations Act, both the employer and the consultant must file extensive reports with DOL.

There is an exemption to the reporting requirement for “advice,” however, under which reports are not required if the consultant or attorney does not communicate directly with employees. This allows employers to seek routine legal and other advice without triggering the reporting requirements. DOL’s proposal would greatly narrow this advice exemption, which could have significant consequences for employers.

Regulations Implementing E.O. 13673, Fair Pay and Safe Workplaces, aka “Blacklisting”
This executive order and the accompanying rulemaking will require federal contractors to submit reports on their violations of 14 different labor laws and executive orders for the purposes of determining whether they are “responsible” contractors. The EO and rulemaking have significant constitutional, statutory, economic and logistical problems. CUPA-HR submitted comments in August. An early version of the regulatory agenda had this listed under Long Term Actions, meaning it would not see regulatory activity in the next 12 months. That was revised to have it listed as active with a final regulation projected for April 2016.

EEOC’s Final Rules on Wellness Plans under GINA and the ADA
On April 20, the EEOC issued a notice of proposed rulemaking to amend the regulations implementing the ADA relating to employer wellness programs. CUPA-HR filed comments in June. Subsequently, on October 30, the EEOC issued proposed changes to its GINA regulations — also relating to employer wellness programs. Comments to the GINA proposal are due by December 29. According to the regulatory agenda, both the ADA and GINA changes will become final in February 2016.

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