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Biannual Regulatory Agenda Released — Paid Sick Leave for Federal Contractors, Blacklisting Regulations Likely to be Addressed

On May 18, the Obama Administration released its 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 the spring and fall. 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 for the agency. 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, the three that follow contain information on issues that CUPA-HR has been focused on:

Department of Labor

Wage and Hour Division — Request for Information on the Impact of the Use of Electric 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, this might be used to support some form of guidance in conjunction with the overtime regulation. The agenda projects the RFI to be issued by the end of July, although it had previously been projected for February 2016, so don’t be surprised if this gets kicked down the road a bit further.

Wage and Hour Division — Establishing Paid Sick Leave for Federal Contractors
Largely modeled after the Healthy Families Act, which has been introduced in every congress since 2004, the president’s Executive Order (EO) and the accompanying rulemaking requires certain federal contractors to provide workers seven days of paid sick leave per year that may also be used for family care and absences resulting from domestic violence, sexual assault and stalking. The EO closely mirrors provisions in paid leave legislation (the Healthy Families Act) that has failed to advance in Congress.

CUPA-HR and Society for Human Resource Management submitted comments on April 12 expressing several concerns with the paid leave proposal and requesting that the EO be withdrawn and the process started anew, as well as requesting that graduate research assistants be excluded from the overly prescriptive regulation. The EO required DOL to issue final regulations by September 30, 2016, and the regulatory agenda has it slated to do so.

Federal Acquisition Regulatory Council

FAR — 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 on August 26, 2015, and signed a letter on July 13, 2016, voicing support for provisions in the House and Senate funding bills for the Department of Defense that would limit the EO’s applicability. An early version of the regulatory agenda had projected this regulation to be issued in April 2016, but it is now listed to be finalized in August 2016.

 

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