Federal Proposed Regulatory Agenda: Review of HR Issues

The Office of Management and Budget has a useful website to that summaries regulatory actions by many (but not all) federal agencies.  The Department of Labor also has a useful website covering its regulatory agenda, including OSHA.  The Equal Employment Opportunity Commission's website contains various proposed and recently finalized regulations.    Below is a summary of proposed regulations of interest from a variety of federal agencies. 

Agency:  National Labor Relations Board (NLRB)
Notification of Employee Rights Under the National Labor Relations Act
The NLRB issued a final rule in August 2011.  The rule is suspended pending legal review.  In May 2013, the D.C. Court of Appeals struck down the regulation.  Another, similar case is pending at the 4th Circuit and a decision is expected during the summer of 2013.  For updates and copies of an employer-response poster click here.

Quickie-Elections Regulation: The NLRB issued a final rule in December 2011 shortening the election period from the time a petition is filed to the date of the election.  Under the previous rule, the average time to election was 42 days.  Under the new rule, the period may be as short as 17 days.  The DC Circuit ruled the regulation invalid because the NLRB did not have a proper quorum voting on the rule.  The NLRB has suspended the rule for now.

 

Agency:  Equal Employment Opportunity Commission (EEOC)

Recordkeeping and Reporting Requirements Under Title VII, the ADA, and GINA

The U.S. Equal Employment Opportunity Commission (EEOC) issued a final rule on February 3, 2012 that extends existing recordkeeping requirements under Title VII of the Civil Rights Act of 1964 and the ADA to entities that are covered by Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA).  For more infomation click here.

"Reasonable Factors Other Than Age"' Under the Age Discrimination in Employment Act
A final rule was issued in March 2012 by the EEOC.  The rule amends the regulations to reflect the Supreme Court's decision in Smith v. City of Jackson, (2008). The agency proposed to revise 29 CFR 1625.7(d) to state that an employment practice that has an adverse impact on individuals within the protected age group on the basis of older age is discriminatory unless the practice is justified by a ``reasonable factor other than age.'' The rule applies to employers with 20 or more employees and takes effect April 30, 2012.

For Health Care Reform regulations and proposed regulations see

Agency:  Department of Labor (DOL)

In June 2012, the DOL released a revised Retrospective Review Progress Report relating to its rulemaking efforts. The report presents revised target completion dates for certain agency rulemaking efforts, and was created in response to President Barack Obama’s Executive Order (E.O.) 13563 which sought to remove regulations and review rules that could potentially hinder job growth and creation. The report focuses on rulemaking efforts by OSHA, OFCCP, and EBSA.  See http://www.dol.gov/regulations/20120531AgencyRetrospectiveReview.pdf

P3  Plan, Prevent and Protect: The spring 2010 DOL regulatory agenda introduced broad plans for new compliance requirements for employers are a variety of regulations.  These will be introduced over time. See http://www.dol.gov/asp/regs/2010RegPlanNarrative.pdf for a summary.

Sub-Agency:  Employee Benefits Security Administration (EBSA)
Group Health Plans and Health Insurance Issuers Relating to Dependent Coverage of Children to Age 26 Under the Patient Protection and Affordable Care Act
The Patient Protection and Affordable Care Act of 2010 (PPACA) amended title I of ERISA, by adding a new section 715 which encompasses various health reform provisions of the Public Health Service Act (PHS Act). These regulations provide guidance on the extension of dependent coverage for children to age 26 under PHS Act 2714.  A final regulation is expected later in 2011.

Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act
The Patient Protection and Affordable Care Act of 2010 (the Affordable Care Act) amended title I of ERISA, by adding a new section 715 which encompasses various health reform provisions of the Public Health Service Act. These regulations provide guidance on the rules relating to coverage of preventive services without cost sharing under the Affordable Care Act.  A final regulation is expected later in 2011.

Group Health Plans and Health Insurance Coverage Relating to Status as a Grandfathered Health Plan Under the Patient Protection and Affordable Care Act
The Patient Protection and Affordable Care Act of 2010 (the Affordable Care Act) amended title I of ERISA, by adding a new section 715 which encompasses various health reform provisions of the Public Health Service Act. These regulations provide guidance on the rules for maintaining grandfathered health plan status under section 1251 of the Affordable Care Act.  No date has been set for a final regulation.

Preexisting Condition Exclusions, Lifetime and Annual Limits, Rescissions and Patient Protections Under the Affordable Care Act
The Patient Protection and Affordable Care Act of 2010 (the Affordable Care Act) amended title I of ERISA, by adding a new section 715 which encompasses various health reform provisions of the Public Health Service Act (PHS Act). These regulations provide guidance on the rules prohibiting preexisting condition exclusions and other discrimination based on health status (PHS Act section 2704); prohibition of lifetime and annual income limits (PHS section 2711); the prohibition of rescissions of health coverage after coverage begins (PHS Act section 2712); prohibition on discrimination in favor of highly compensated individuals (PHS section 2716); and patient protections (PHS Act section 2719A).   No date has been set for a final regulation.

Sub-Agency:  Wage & Hour Division/DOL
Right To Know Under the Fair Labor Standards Act
The Department of Labor proposes to update the recordkeeping regulations under the Fair Labor Standards Act in order to enhance the transparency and disclosure to workers of their status as the employer's employee or some other status, such as an independent contractor, and if an employee, how their pay is computed (exempt or non-exempt status). The Department also proposes to clarify that the mandatory manual preparation of "homeworker" handbooks applies only to employers of employees performing homework in the restricted industries. The title of this proposed rule has changed to better reflect the purpose of this action.  A proposed rule has not been published.

 

Sub-Agency:  Office of Federal Contract Compliance Programs (OFCCP)/DOL
(Applies to Federal Contractors and Subcontractors who have Affirmative Action Plans)
Non Discrimination In Compensation: Compensation Data Collection Tool 
Summary:  This proposed rule falls under the DOL division responsible for affirmative action (OFCCP) and would apply to employers with an affirmative action plan in place (typically those employers who are federal contractors or subcontracts must have an affirmative action plan).  This proposal is in the "pre-rule" stage so not timeline for action has been set.

Compensation discrimination is one form of discrimination that is prohibited by Executive Order 11246, as amended, (E.O. 11246). Eliminating gender and race-based, compensation discrimination continues to be a priority issue for OFCCP. Consequently, OFCCP is considering the development of a new strategic compensation data collection tool that will effectively identify contractors that are likely to violate E.O. 11246. In addition, the data collection tool may be used to conduct establishment-specific, contractor-wide, and industry-wide analyses. Through publication of an Advance Notice of Proposed Rulemaking (ANPRM), OFCCP will seek input from stakeholders on issues relating to the scope, content, and format of the tool to ensure that it is an effective and efficient data collection instrument.

Affirmative Action and Nondiscrimination Obligations of Contractors and Subcontractors; Evaluation of Recruitment and Placement Results Under the VEVRAA of 1974, As Amended
This Notice of Proposed Rulemaking (NPRM) would revise the regulations in 41 CFR parts 60-250 and 60-300, implementing the nondiscrimination and affirmative action provisions of VEVRAA. This NPRM would strengthen the affirmative action requirements for Federal contractors and subcontractors. The NPRM would amend the regulations to require that Federal contractors and subcontractors conduct more substantive analyses of recruitment and placement actions taken under VEVRAA and would require the use of numerical targets to measure the effectiveness of affirmative action efforts. The NPRM would also make revisions to recordkeeping requirements.  The comment period has ended on the proposed rule, but no date has been set for a final rule to be published.

Affirmative Action and Nondiscrimination Obligations of Contractors and Subcontractors: Evaluation of Recruitment and Placement Results Under Section 503
This Notice of Proposed Rulemaking (NPRM) 41 CFR part 60-741, implements the nondiscrimination and affirmative action provisions of section 503 of the Rehabilitation Act of 1973, as amended (Section 503). This NPRM would strengthen the affirmative action requirements for Federal contractors and subcontractors. The NPRM would amend the regulations to require that Federal contractors and subcontractors increase linkages and conduct more substantive analyses of recruitment and placement actions taken under section 503. The regulation would also make revisions to recordkeeping requirements.  A final regulation is expected to be issued by August 2011.

Sub-Agency:  Office of Labor-Management Standards (OLMS)/DOL
Persuader Agreements: Employer and Labor Relations Consultant Reporting Under the LMRDA 
Proposed rule to require employer and labor relations consultant reporting under the Labor-Management Reporting and Disclosure Act (LMRDA).

Summary:  This rule would require "persuaders" (i.e., those management consultants and attorneys) who advise employers during union organizing drives, or who suggest or review communications or materials would have to report any receipts paid by the employer to the consultant or attorney.  Potentially, annual salaries and benefits may have to be reported as well.  Further, while no draft proposal has been released yet, it has been rumored that internal company managers and supervisors who talk to employees regarding about unions during a union organizing drive would be required to report salaries to the federal Department of Labor as well via Form LM-21.  Currently, "persuaders" who are outside management consultants or attorneys who speak directly to employees during a union organizing drive must file Form LM-21 annually.  A related proposal would update the form used for disclosure of financials related to persuader activities.  A proposed regulation is expected by August 2012.

Agency:  U.S. Citizenship and Immigration Services (USCIS)
The USCIS has numerous regulations pending relating to H1Bs, visas, immigration forms, etc.  Employers who have those issues can view the proposed regulations here.

Published on Friday, April 6, 2012 (updated 05/30/2014)