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Washington Labor & Employment Wire » DOL Announces Semi-Annual Regulatory Agenda

DOL Announces Semi-Annual Regulatory Agenda


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On December 7, 2009, the Department of Labor (DOL)’s Employment Standards Administration (”ESA”) and Employment and Training Administration (ETA) published their semi-annual regulatory agenda for regulations selected to be reviewed or developed over the next twelve months. Included in the agenda are the following significant regulatory items in the final rule, proposed rule, pre-rule, and long-term action stages. While ESA and ETA have published a schedule for these items, the published dates are tentative and subject to change.

Regulations in Final Rule Stage

In February 2010, ETA plans to issue a final rule to amend its regulations regarding the process by which employers obtain temporary labor certifications from DOL in conjunction with H-2A petitions submitted to the Department of Homeland Security (DHS). The revised rule is intended to undo changes made to the H-2A program by the 2008 final rule, particularly concerning the current attestation-based certification process and the calculation of farm worker wages. ETA issued a notice of proposed rulemaking in September 2009 and extended the comment period to October 20, 2009.

In June 2010, ESA expects to take final action on its proposed rule implementing regulations pursuant to Executive Order 13496, signed by President Barack Obama on January 30, 2009. The regulations propose to prescribe the size, form, and content of the notice that contractors must post to describe the rights of employees under federal labor laws. In August 2009, ESA issued the proposed rulemaking and ended the comment period in September 2009.

Regulations in Proposed Rule Stage

In December 2009, ESA plans to issue a notice of proposed rulemaking pursuant to Executive Order 13495, signed by President Barack Obama on January 30, 2009. This rulemaking would set forth regulations requiring contractors and subcontractors, who succeed a contract for the same or similar service at the same location of a predecessor, to offer employees employed by the predecessor a right of first refusal to employment.

In August 2010, ESA expects to update the recordkeeping regulations under the Fair Labor Standards Act. These new regulations will provide additional information to workers regarding how their pay is computed, and they will focus on employees with “telework” and “flexiplace” arrangements.

In November 2010, ESA may issue additional regulations implementing the new military family leave amendments to the Family and Medical Leave Act included in the National Defense Authorization Act. ESA issued the current regulations implementing the military family leave amendments in January 2009.

Also in November 2010, ESA plans to publish a notice of proposed rulemaking that considers a revised interpretation of Section 203(c) of the Labor-Management Reporting and Disclosure Act. Section 203(c) of the LMRDA creates an “advice” exemption from reporting requirements that apply to employers and other persons in connection with persuading employees about the right to organize and bargain collectively. The proposed interpretation would narrow the scope of the “advice” exemption.

Additionally, ETA plans to publish a notice of proposed rulemaking to alter the current attestation-based certification requirements of the H-2B visa program in November 2010. Currently, prior to the admission of H-2B workers, DOL must certify that there are not sufficient qualified U.S. workers available and that hiring foreign workers will not adversely affect the wages and working conditions of similar U.S. workers. The new regulation will alter the current H-2B program to increase the program’s integrity and strengthen protections of U.S. workers.

Regulations in Pre-Rule Stage

In November 2010, ESA intends to publish a request for information regarding the application of Title IV of the Labor-Management Reporting and Disclosure Act in the context of Internet balloting in union officer elections.

Regulations in Long Term Action Stage

In December 2010, ESA plans to issue an advanced notice of proposed rulemaking to revise the regulations that implement the nondiscrimination and affirmative action provisions of section 503 of the Rehabilitation Act of 1973. This rulemaking would strengthen affirmative action requirements by requiring federal contractors and subcontractors to conduct more in-depth analyses and monitoring of their recruitment efforts of individuals with disabilities.

Also in December 2010, ESA also intends to issue a notice of proposed rulemaking to revise the regulations that implement the nondiscrimination and affirmative action provisions of the Vietnam Era Veterans Readjustment Assistance Act (VEVRAA). The amendments would require that federal contractors and subcontractors conduct more in-depth analyses of recruitment and placement efforts taken under VEVRAA. The amendments would also require the use of numerical targets for affirmative action efforts and would alter record-keeping requirements.

In January 2011, ESA plans to issue a notice of proposed rulemaking to revise the affirmative action requirements of Executive Order 11246 applicable to federal and federally assisted construction contractors. The revisions would update the regulations that set forth the actions to be taken by construction contractors to meet their affirmative action obligations.