Employment Law Daily Unified regulatory agenda update reflects 1-in-2-out mandate, intended DOL and EEOC actions
Tuesday, July 25, 2017

Unified regulatory agenda update reflects 1-in-2-out mandate, intended DOL and EEOC actions

By Pamela Wolf, J.D.

The 2017 Update to the Unified Agenda of Regulatory and Deregulatory Actions has been released, reflecting for the first time the results of President Trump’s Executive Order 13771, signed January 27, 2017 (82 FR 8977), under which for every new regulation issued, at least two prior regulations must be identified for elimination. The cost of planned regulations also must be prudently managed and controlled through a budgeting process.

Under its reign, the Trump Administration says that agencies have withdrawn 469 actions proposed in the Fall 2016 Agenda; reconsidered 391 active actions by reclassifying them as long-term (282) and inactive (109), allowing for further review; economically significant regulations fell to 58, or about 50 percent less than Fall 2016; and agencies will post and make public for the first time their list of “inactive” rules, providing notice to the public of regulations still being reviewed or considered.

Labor Department. Of the many regulatory actions on the DOL’s rule list, several are of particular interest, including the following at the Wage and Hour Division, the Office of Labor-Management Standards, and the Occupational Safety and Health Administration. Notably, the agenda includes no regulatory actions for the Office of Federal Contract Compliance Programs.

Wage and Hour Division:

  • Request for Information Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees. The DOL intends to publish a Request for Information (RFI) regarding questions of policy and application related to the so-call “White Collar” final rule, currently mired in litigation. The RFI is expected in July 2017, and sounds a death knell to the Obama-era overtime rule.
  • Tip Regulations Under the Fair Labor Standards Act (FLSA). Under FLSA Section 3(m), an employer may take a partial credit (tip credit) against its minimum wage payment obligation to a tipped employee based on tips received and retained by the employee. DOL regulations limit an employer’s ability to use an employee’s tips regardless of whether the employer takes a tip credit under Section 3(m), or instead pays the full minimum wage directly to the employee. The DOL intends to propose a rescission of the current restrictions on tip pooling by employers that pay tipped employees the full minimum wage directly. The Notice of proposed rulemaking (NPRM) is slated for August 2017.

Office of Labor-Management Standards:

  • Rescission of Rule Interpreting “Advice” Exemption in Section 203(c) of the Labor-Management Reporting and Disclosure Act. This is a NPRM aimed at rescinding the controversial, so-called “persuader rule,” published March 24, 2016 (Interpretation of the “Advice” Exemption in section 203(c) of the Labor-Management Reporting and Disclosure Act (LMRDA), 81 FR 15924). This is not news: The proposed rule to rescind the persuader rule was published June 12, 2017 (82 FR 26877); the comment period ends August 11, 2017.
  • Labor Organization Annual Financial Reports: Coverage of Intermediate Bodies. OLMS purposes to return to its 2003 interpretation that intermediate bodies subordinate to a national or international labor organization that includes a labor organization are covered by the Labor-Management Reporting and Disclosure Act. The NPRM is expected in March 2018. This increases union disclosure requirements.
  • Trust Annual Reports. OLMS proposes to re-establish a Form T-1 to capture financial information pertinent to trusts in which a labor organization is interested, information that it says has historically gone unreported. The LMRDA’s various reporting provisions are intended to empower labor organization members by giving them the means to maintain democratic control over their labor organizations and ensure a proper accounting of labor organization funds. The proposed rule would help bring the reporting requirements for labor organizations and section 3(l) trusts in line with contemporary expectations for the disclosure of financial information. The NPRM is scheduled for March 2018.

Occupational Safety and Health Administration:

  • Improve Tracking of Workplace Injuries and Illnesses. This proposal, already announced, would delay until December 1, 2017, the initial reporting date related to this final rule, which changed regulations on employer reporting of workplace injuries and illnesses to include, among other things, electronic reporting requirements and OSHA’s public posting of selected data scrubbed of personally identifiable information. The NPRM was published June 28, 2017 (82 FR 29261); the comment period ended July 13, 2017.
  • Tracking of Workplace Injuries and Illnesses. OSHA intends to issue a proposal to reconsider, revise, or remove provisions of the Improve Tracking of Workplace Injuries and Illnesses final rule. The NPRM is expected in October 2017.

Equal Employment Opportunity Commission. Although several anticipated regulatory actions are included on the EEOC’s rule list, the following are of particular interest:

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