Employment Law Daily Spring federal regulatory agenda includes notable L&E actions
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Monday, May 23, 2016

Spring federal regulatory agenda includes notable L&E actions

By Pamela Wolf, J.D. The 2016 Spring Agenda of Regulatory and Deregulatory Actions was published on May 18. Several items that will impact the labor and employment landscape appear on the agency rule list for the Labor Department’s Wage and Hour Division and OSHA, as well the regulatory docket for the EEOC. The updated Unified Agenda is available here. Wage and Hour Division. The Labor Department’s rule list includes these notable actions pending at the Wage and Hour Division:
  • Request for Information on the Impact of the Use of Electric Devices by Nonexempt Employees on Hours Worked Issues: The DOL plans to publish an information request in July 2016 to gather information about employees’ use of electronic devices to perform work outside of regularly scheduled work hours and away from the workplace. The request will also seek information about “last minute” scheduling practices used by some employers that are made possible in large part by employees’ use of these devices.
  • Establishing Paid Sick Leave for Contractors, Executive Order 13706: The DOL expects to issue a final order implementing Executive Order 13706 (80 FR 54697), which establishes paid sick leave for federal contractors and subcontractors, by September 30, 2016. Executive departments and agencies under the order are required, to the extent permitted by law, to ensure that new contracts, contract-like instruments, and solicitations as described in Section 6 of the order, include a clause, which the contractor and any subcontractors must incorporate into lower-tier subcontracts, specifying that all employees, in the performance of the contract or any subcontract thereunder, shall earn not less than one hour of paid sick leave for every 30 hours worked. Consistent with the Executive order, the Department of Labor will issue implementing regulations.
OSHA. The following notable actions are pending at OSHA:
  • Preventing Workplace Violence in Healthcare: In November 2016, the DOL expects to issue a request for information (RFI) that will provide OSHA's history with the issue of workplace violence in healthcare, including a discussion of the guidelines initially published in 1996, a 2014 guidelines update, and recently published tools and strategies used by healthcare facilities with effective violence prevention programs. The RFI will also discuss OSHA’s use of 5(a)(1) in enforcement cases in healthcare. It will in addition solicit information primarily from health care employers, workers and other subject matter experts on impacts of violence, prevention strategies, and other information that will be useful to OSHA should it move forward in rulemaking. The RFI will also solicit information from stakeholders, including state officials, employers and workers, in the nine states that require certain health healthcare facilities to have some type of workplace violence prevention program.
  • Communication Tower Safety: OSHA intends to initiate the Small Business Regulatory Enforcement Fairness Act (SBREFA) process on this action by July 2016. Although the number of employees engaged in the communication tower industry remains small, the fatality rate is very high. Falls are the leading cause of death in tower work, and OSHA has evidence that fall protection is used either improperly or inconsistently. The agency says that employees are often hoisted to working levels on small base-mounted drum hoists mounted to a truck chassis, and these may not be rated to hoist personnel. OSHA plans to revise its fall protection and personnel hoisting standards because communication tower construction and maintenance activities are not adequately covered by the current standards. Revisions would clarify the safety responsibilities regarding tower work, structural considerations and radio frequency hazards. It would also consider incorporating the new industry consensus standards for construction or maintenance of communication towers.
  • Occupational Exposure to Beryllium: OSHA aims to analyze submitted comments on this action in June 2016. In 1999 and 2001, OSHA was petitioned to issue an emergency temporary standard for permissible exposure limit (PEL) to beryllium by the United Steel Workers (formerly the Paper Allied-Industrial, Chemical, and Energy Workers Union), Public Citizen Health Research Group, and others. While the agency denied the petitions, it also stated its intent to begin data gathering to collect necessary information on beryllium's toxicity, risks, and patterns of usage. On November 26, 2002, OSHA published a RFI (67 FR 70707) to solicit information pertinent to occupational exposure to beryllium. The agency also conducted field surveys of selected worksites to assess current exposures and control methods being used to reduce employee exposures to beryllium. OSHA convened a Small Business Advocacy Review Panel and completed the SBREFA report in January 2008. OSHA also completed a scientific peer review of its draft risk assessment.
EEOC. These notable items appear on the EEOC’s agency rule list:
  • Adjusting the Penalty for Violation of Notice Posting Requirements: The EEOC expects to take final action in July 2016 to update the penalties for notice posting violations. Under 42 U.S.C. 2000e-10(a) and 29 CFR 1601.30(a), every employer, employment agency, labor organization, and joint labor-management committee controlling an apprenticeship or other training program covered by title VII, ADA, and GINA must post notices describing applicable provisions in prominent and conspicuous places on the entity’s premises. Failure to comply the requirement is punishable by a fine for each separate offense. The final rule increases the current civil monetary penalty for violation of the notice posting requirements from $210 to $525, pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, which further amended the Federal Civil Penalties Inflation Adjustment Act of 1990 (FCPIA Act). In November 2015, the FCPIA Act was again amended to require that each federal agency issue regulations, adjusting for inflation, concerning the maximum civil penalties that may be imposed pursuant to each agency's statutes no later than July 1, 2016, and no later than January 15 of every following year.
  • Federal Sector Equal Employment Opportunity Process: In April 2016, the commission intends to issue a notice of proposed rulemaking on this action. In July 2012, the Commission published a final rule making 15 discrete changes to various parts of the federal sector EEO complaint process and indicated that the rule was the first step in a broader review of the federal sector EEO process. On February 6, 2015, the EEOC issued an advance notice of proposed rulemaking (80 FR 6669) that sought public input on additional issues associated with the federal sector EEO process.

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