On December 7, 2009, the Department of Labor’s Employee Benefits Security Administration (”EBSA”) published its 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 and proposed rule stages. While EBSA has published a schedule for these items, the published dates are tentative and subject to change.

Regulations in Final Rule Stage

In December 2009, EBSA intends to issue a final rule clarifying the prohibited transaction exemption created by the Pension Protection Act of 2006. EBSA previously sought written comments and suggestions concerning this rule. The exemption would allow investment advice provided under an “eligible investment advice arrangement” to be provided to participants or beneficiaries of certain individual account plans. As defined in section 408(g)(2) of the Employee Retirement Income Security Act (ERISA), an “eligible investment advice arrangement” covers arrangements under which advisor fees do not vary with the selection of differing investment options, or under which investment options are selected on the basis of statutorily-compliant computer models. The final rule would provide additional guidance as to what types of computer models are satisfactory and would require the Secretary of Labor to create a model fee-disclosure form. EBSA also indicated in its semi-annual regulatory agenda that it plans on issuing a notice of proposed rulemaking in February 2010, which would narrow the scope of the prohibited transaction exemption as initially proposed by the Bush Administration.

On January 5, 2010, the comment period for the interim final rule implementing anti-genetic discrimination in covered group premiums under the Genetic Information Nondiscrimination Act (GINA) will end. The interim final rule was adopted in October 2009 and became effective on December 7, 2009. GINA prohibits group health plans and health insurers from denying coverage or charging higher premiums to an individual based on a genetic predisposition towards developing certain diseases and disorders. The rule provides, among other things, guidance regarding the prohibition on plans and issuers from requesting or requiring genetic testing, as well as the prohibition on the collection of genetic information. In addition to the formal prohibition of genetic-based discrimination, the rule establishes civil penalties under ERISA.

In January 2010, EBSA intends to issue final rules establishing a safe harbor period of seven days during which money withheld by employers or paid by participants for contribution to a plan would not be considered “plan assets” under Title I of ERISA or the related provisions of the Internal Revenue Code. Because plan assets are subject to fiduciary duties and other obligations, the amendment seeks to provide greater certainty to plan sponsors and fiduciaries, as well as plan participants, as to whether particular participant contributions held by an employer constitute plan assets. 

In April 2010, EBSA plans on issuing an interim final rule concerning the implementation of the Mental Health Parity and Addiction Act of 2008. That act requires that annual or lifetime dollar limits on mental health benefits be no lower than medical or surgical benefits offered under a group health plan. In response to an April 2008 Request for Information, EBSA received over 400 comments raising concerns over compliance with these parity provisions. Accordingly, EBSA anticipates issuing an interim final rule that will provide regulatory guidance regarding these provisions. 

In April 2010, EBSA plans to issue a final rule requiring that multiemployer plan administrators provide plan participants, beneficiaries, representatives, or contributing employers copies of written documents relating to the plan’s funding and financial condition within 30 days of receiving a written request. This final rule implements the new plan disclosure requirements set forth in the Pension Protection Act of 2006. EBSA intends to publish a separate regulation at a later date establishing civil penalties under section 502(c)(4) of ERISA for noncompliance with this provision.

In September 2010, EBSA plans to issue final rules implementing portions of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and subsequent related legislation, including the Children’s Health Insurance Program Reauthorization Act of 2009.

In September 2010, EBSA plans to issue a final rule clarifying what information must be provided to plan participants and beneficiaries to allow them to make informed investment decisions. The rule may amend regulations governing ERISA section 404(c) plans. According to EBSA, the rule will specifically cover the disclosure of information concerning plan fees and expenses.

Regulations in Proposed Rule Stage

In June 2010, EBSA plans to issue a notice of proposed rulemaking intended to bring the definition of “fiduciary” in line with the current practices of plan managers, individual plan participants, and investment advisors. Under ERISA’s regulatory definition, a “fiduciary” administers plans by controlling plan operations, selecting service providers and managing plan assets. The rule would amend the definition of “fiduciary” at 29 C.F.R. § 2510.3-21(c) to include individuals rendering investment advice for a fee, as set forth under section 3(21) of ERISA. EBSA is issuing this rule in response to concerns that the current definition of “fiduciary” may inappropriately limit the types of investment advice that trigger fiduciary duties on the part of investment advisors.

In August 2010, EBSA intends to issue a notice of proposed rulemaking that would satisfy requirements of the Pension Protection Act of 2006 by requiring administrators of defined benefit plans to provide annual funding notices to pension plan beneficiaries and participants. Further, in September 2010, EBSA intends to issue a notice of proposed rulemaking that would satisfy requirements of the Pension Protection Act of 2006 by requiring ERISA-covered plans to provide individual pension benefit statements to plan participants and beneficiaries at designated intervals. Under the proposed rule, the designated intervals would differ with the type of account plan.  Individual account plans providing for individual direction would be required to provide quarterly statements, individual account plans not permitting individual direction would be required to provide annual statements, and defined benefits plans would be required to provide statements every three years.

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.

On October 7, 2009, the Senate Committee on Health, Education, Labor, and Pensions approved, by a 13-10 party-line vote, President Obama’s nomination of M. Patricia Smith to serve as Solicitor for the Department of Labor. The Solicitor of Labor represents the DOL in litigation and alternative dispute resolution and provides legal opinions and advice regarding DOL activities.    

At the time of her nomination, Smith worked as the Commissioner for the New York State Department of Labor. Prior to this role, Smith served as Chief of the Labor Bureau for the New York State Attorney General’s Office.

On October 7, 2009, the Senate Committee on Health, Education, Labor, and Pensions approved, by a voice vote, President Obama’s nomination of William E. Springs as Assistant Secretary for Policy, Department of Labor. The Office of the Assistant Secretary for Policy provides advice and assistance to the DOL regarding such topics as policy development, program evaluation and implementation, budget and performance analysis, and legislation.

At the time of his nomination, Spriggs worked as a professor and Chair of the Department of Economics at Howard University. Spriggs also served on the Agency Review Team for the DOL during President Obama’s transition to the White House. During the Clinton Administration, Spriggs led the staff of the National Commission for Employment Policy and served as a senior economist for the Democratic staff of the Joint Economic Committee of the U.S. Congress. 

Spriggs also served as Chair of the Independent Health Care Trust for UAW Retirees of Food Motor Company, Chair of the UAW Retirees of the Dana Corporation Health and Welfare Trust, and Vice Chair of the Board of the Congressional Black Caucus Political Education and Leadership Institute. Spriggs also served on the United Food and Commercial Workers’ Union National Commission on ICE Misconduct and Violation of 4th Amendment Rights.

 On October 7, 2009, the Senate Committee on Health, Education, Labor, and Pensions approved, by a voice vote, President Obama’s nomination of Joseph A. Main as Assistant Secretary for Mine Safety and Health Administration, Department of Labor. MSHA administers the provisions of the Federal Mine Safety and Health Act of 1977, as amended by the Mine Improvement and New Emergency Response Act of 2006. MSHA also enforces compliance of safety and health standards designed to improve safety and health conditions in mines across the country and reduce the number of accidents. 

At the time of his nomination, Main worked as a self-employed mine safety consultant, with his recent work focusing on international mine safety, preventing mining accidents, and developing training programs and facilities to prepare miners and emergency responders for mine emergencies. Prior to this role, he served in several positions in the United Mine Works of America. 

On October 1, 2009, OSHA announced a new National Emphasis Program (NEP) that targets occupational injury and illness records prepared by employers.   

Under this NEP, OSHA will complete the following steps for a records inspection:  obtain copies of an employer’s OSHA Form 300, a full roster of employees, the total numbers of hours worked, and the average number of workers; review individual employee’s records; review an employer’s log to identify cases that do not meet OSHA’s recordability criteria; interview the employee in charge of maintaining injury and illness records; interview employees who are likely to be injured or become ill; interview management representatives; interview first-aid providers and health care professionals; and conduct a limited walkaround safety and health inspection. 

The NEP focuses on selected industries with high injury and illness rates, including scheduled passenger air transportation, animal slaughtering, steel foundries, soft drink manufacturing, couriers, mobile home manufacturing, rolling mill machinery and equipment manufacturing, iron foundries, and nursing care facilities.

This program went into effect on September 30, 2009.

On September 30, 2009, the Department of Labor’s Employment and Training Administration (ETA) filed an extension of the comment period for a proposed rule to amend the H-2A visa program. The H-2A program allows U.S. agricultural businesses to employ foreign workers in temporary or seasonal agricultural jobs. Employers must apply to DOL for H-2A labor certification before they can petition the federal Department of Homeland Security, U.S Citizenship and Immigration Services for the admission of H-2A workers to the United States.

The proposed rule was published in the Federal Register by ETA on September 4. The comment period was originally scheduled to close on October 5; however, ETA has extended this period to October 20. Notice of the extension is scheduled to be published in the Federal Register on October 2.

The final rule on the current regulations appeared in the Federal Register on December 18, 2008 and became effective on January 17, 2009. The final rule amended the regulations governing the certification for temporary employment of nonimmigrant workers in agricultural occupations and the enforcement of contractual obligations of the employers of such workers.

Under the December 2008 regulations, employers have to complete a general attestation stating that they will abide by the H-2A process and must take four positive recruitment steps, including: (1) submission of a job order to the State Workforce Agencies (SWAs) serving the area of intended employment; (2) running two print advertisements; (3) contacting former U.S. employees who were employed within the last year; and (4) recruiting in all states currently designated as a state of traditional or expected labor supply with respect to each area of intended employment.

Under the proposed revised rule, an employer must provide DOL with documentation that it has complied with the prerequisites for employing foreign workers under the H-2A program, rather than simply attesting to compliance. The proposed rule also reinstates the use of the Department of Agriculture’s quarterly farm labor survey as the basis for determining the adverse effect wage rate, rather than the Bureau of Labor Statistics’ occupational employment survey data used under the 2008 rule. The rule also proposes the use of a national registry to assist agricultural employers in finding workers across the nation.

The new rule also requires employers to provide copies of job orders submitted to DOL to its workers and post notices outlining employee rights. The rule also provides protections to U.S. workers employed by H-2A employers to ensure the U.S. workers in similar jobs do not receive less wages or benefits than their H-2A counterparts. Finally, the proposed rule strengthens penalties for companies who do not comply with the program requirements and increases DOL authority for conducting audits and monetary penalties.

In May 2008, DOL issued a nine-month suspension of the new regulations in order to afford the new administration an opportunity to review the rule. However, the Department lifted the suspension one month later in response to a preliminary injunction blocking the suspension issued from the U.S. District Court for the Middle District of North Carolina. After completing its review of the rule, DOL proposed the revised regulations on September 4 to ensure the U.S. agricultural economy employs U.S. workers to the fullest extent possible.

Labor Secretary Solis has appointed Legal Aid employment attorney Patricia A. Shiu as Director of the Department’s Office of Federal Contract Compliance Programs (OFCCP). The OFCCP is responsible for the enforcement of three laws that require federal contractors to take affirmative action and ban discrimination in employment decisions: Executive Order 11246, Section 503 of the Rehabilitation Act of 1973, and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974.

Shiu is currently vice president of programs at the Legal Aid Society-Employment Law Center in San Francisco where she has worked since 1983. She is also director of the Society’s Work and Family Project, which advocated for the passage of the California Family Rights Act and its regulations. Shiu focuses on employment discrimination and family-medical leave issues. In 1993, Shiu was appointed to the Civil Rights Reviewing Authority for the Department of Education by Secretary Richard Riley and has previously served as a board member and vice president of the Executive Board of the National Employment Lawyers Association. She is a graduate of the University of San Francisco School of Law.

Shiu is expected to take over as director of OFCCP in September 2009. The appointment does not require Senate confirmation.

In response to a June 29, 2009 preliminary injunction from the U.S. District Court for the Middle District of North Carolina, the Department of Labor announced that it has lifted its suspension of the H-2A visa program final rule.

The final rule on the new H-2A labor certification regulations appeared in the Federal Register on December 18, 2008 and became effective on January 17, 2009. The final rule amended the regulations governing the certification for temporary employment of nonimmigrant workers in agricultural occupations, as well as regulations regarding the enforcement of contractual obligations entered into by such workers. On May 28, 2009, DOL had announced a nine-month suspension of these new H-2A labor certification regulations, and notice of the suspension was published in the Federal Register the next day.  The June 29, 2009 order from the Middle District of North Carolina federal court concluded an injunction against the suspension was appropriate because the DOL would suffer relatively little harm from the injunction, and the plaintiff growers associations would suffer irreparable harm in the absence of an injunction. 

Under the newly reinstituted final rule, employers must apply to DOL for H-2A labor certification before they can petition the federal Department of Homeland Security, U.S Citizenship and Immigration Services for the admission of H-2A workers to the United States for agricultural work on a temporary or seasonal basis. Under the new regulations, employers would have to complete a general attestation stating that they will abide by the H-2A process and must take four positive recruitment steps: (1) submit a job order to the SWA serving the area of intended employment; (2) run two print advertisements (one of which must be on a Sunday); (3) contact former U.S. employees who were employed within the last year; and (4) recruit in all states currently designated, based on an annual determination made by Secretary of Labor, as a state of traditional or expected labor supply with respect to each area of intended employment. Finally, employers are required to submit a job order to the applicable SWA.

On May 28, 2009, the U.S. Department of Labor’s Employment and Training Administration (ETA) announced a nine-month suspension of the new H-2A labor certification regulations. The final rule on the new regulations appeared in the Federal Register on December 18, 2008 and became effective on January 17, 2009. The final rule amended the regulations governing the certification for temporary employment of nonimmigrant workers in agricultural occupations and the enforcement of contractual obligations of the employers of such workers. Notice of the suspension was published in the Federal Register on May 29, 2009.

For the nine-month suspension period, DOL will reinstate the H-2A regulations that were in place on January 16, 2009, prior to the new rule taking effect. The suspension is intended to provide DOL with an opportunity to review and consider the requirements of the new rule “to ensure that it effectively carries out the statutory objectives and requirements of the [H-2A visa] program in a manner that minimizes disruption” to the department. By the end of the nine-month period, the department will either have engaged in new rule-making or will lift the suspension.

Suspension of the final rule is in response to concerns that have been raised about the new regulations. Following the issuance of the H-2A final rule, a lawsuit was filed on January 12, 2009 in the U.S. District Court for the District of Columbia challenging the final rule (United Farm Workers, et al. v. Chao, et al., Civil No. 09-00062RMU). The lawsuit, brought by the United Farm Workers and others, asserted that the final rule violated section 218 of the Immigration and Nationality Act and the Administrative Procedure Act. District Court Judge Ricardo Urbina denied plaintiffs’ request for a temporary restraining order and preliminary injunction, and rejected plaintiffs’ arguments that the new regulations would cause irreparable harm. Plaintiffs have since filed an appeal with the U.S. Court of Appeals for the District of Columbia Circuit.

In addition, to the lawsuit, DOL has concerns that the Department and the State Workforce Agencies (SWAs) lacked sufficient resources (e.g., automated system, training, staffing) to effectively and efficiently implement the rule at the current time. The Department wants to ensure that the regulatory scheme has a sound basis prior to implementation. To avoid disruption in agricultural production, sales and market conditions, particularly during the current economic environment, DOL has suspended the new regulations and reinstated the previous regulations to ensure stability while the rule is under review.

Employers must apply to DOL for H-2A labor certification before they can petition the federal Department of Homeland Security, U.S Citizenship and Immigration Services for the admission of H-2A workers to the United States for agricultural work on a temporary or seasonal basis. Under the new regulations, employers would have to complete a general attestation stating that they will abide by the H-2A process and must take four positive recruitment steps: (1) submit a job order to the SWA serving the area of intended employment; (2) run two print advertisements (one of which must be on a Sunday); (3) contact former U.S. employees who were employed within the last year; and (4) recruit in all states currently designated, based on an annual determination made by Secretary of Labor, as a state of traditional or expected labor supply with respect to each area of intended employment. Finally, employers were to submit a job order to the applicable SWA.