Co-authored by Alex Passantino and Leon Sequeira

Late last year, the U.S. Department of Labor released its long-awaited Fall 2010 Semi-Annual Regulatory Agenda.  The Semi-Annual Regulatory Agenda (the “reg agenda”) gives the public a preview of the regulatory activity the DOL expects to undertake in the coming months (and years).  The reg agenda contains brief descriptions and target dates for DOL’s regulatory initiatives, including Notices of Proposed Rulemaking (in which the Department will propose new or revised regulations and allow the public a period of time — usually 60 to 90 days — to provide its input through comments) and Final Rules (in which the Department, after considering the comments provided through the process described above, issues the rules by which the regulatory community will be bound).

Among the many regulatory activities described in the reg agenda are a number of initiatives by the Department’s Wage & Hour Division.  Among the items identified by WHD are proposed rules increasing employer recordkeeping obligations under the Fair Labor Standards Act  and implementing amendments to the Family and Medical Leave Act, as well as final rules addressing amendments to the FLSA (and a number of other issues) and the nondisplacement of qualified workers under the Service Contract Act.

“Right to Know Under the Fair Labor Standards Act”

In this proposed rulemaking, DOL “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.”  This proposed rulemaking already has garnered significant attention.  Originally identified by the Department early last years as “Records to be Kept by Employers Under the Fair Labor Standards Act,” this proposal immediately drew the concern of employer community when it was reported that it would require employers to, among other things, prepare a written analysis of an employee’s exempt status under the FLSA, provide a copy of that analysis to the employee, and maintain a copy of that analysis for review by a WHD investigator.  The fact sheet released by the Department along with the reg agenda and the rebranding of the proposal does little to alleviate this concern.

The proposal was originally slated for publication in August 2010, but now has a target proposal date of April 2011.  Given the significance of the issues implicated by this rulemaking, we will continue to monitor its progress and fully anticipate submitting comments for the regulatory record at the appropriate time.

Amendments to the Family and Medical Leave Act

This proposed rulemaking would “amend the regulations implementing the Family and Medical Leave Act to incorporate amendments made by the National Defense Authorization Act for FY 2010 and the Airline Flight Crew Technical Corrections Act.”  In previous descriptions of this proposal, DOL suggested that it would also be revisiting the revised FMLA regulations published in January 2009.  The current description no longer contains that suggestion; it appears that the proposal — currently slated for February 2011 — will address only the statutory changes.

Although sweeping changes to the FMLA regulatory scheme appear to be tabled for the short term, DOL has awarded a contract to an outside entity in order to conduct two surveys — one of employees and one of employers — to collect information about the use and administration of the FMLA.  It seems unlikely that DOL would collect such information without an expectation to use it in some manner in the future.  As a result, we will continue to carefully monitor this situation as well.

Amendments to the Fair Labor Standards Act

Towards the end of the Bush Administration, WHD proposed a rule [] that would implement a number of statutory developments, including multiple updates to the minimum wage, clean up references to outdated minimum wages in the examples provided in the regulations, and address a number of other issues, such as tip credit, tipped occupations, and the fluctuating workweek method of payment.  Although the comment period closed in September 2008, no final rule yet has been issued by DOL.

The final rule currently is at the Office of Management and Budget’s Office of Information and Regulatory Affairs (OIRA), which is one of the final steps in the regulatory process prior to publication in the Federal Register.  Because this rule was proposed by the Bush Administration, but finalized by the Obama Administration, it is unclear at this time how the final rule will differ from the proposal. 

Nondisplacement of Qualified Workers Under the Service Contract Act

Finally, OIRA is also currently reviewing WHD’s final rule regarding the nondisplacement of qualified workers under the SCA.  This rule implements President Obama’s Executive Order 13495 of January 30, 2009, which “establishes the policy that Federal service contracts generally include a clause requiring the contractor and its subcontractors, under a contract that succeeds a contract for the same or similar service at the same location, to offer qualified employees (except managerial and supervisory personnel) employed on the predecessor contract a right of first refusal to employment under the successor contract.” 

The final rule is expected to be published in March 2011.

WHD apparently will be quite busy on the regulatory front in 2011.  We will update the blog as additional information becomes available on each of these regulatory initiatives — or any other initiatives that come along. 

In the meantime, remember that WHD has requested information from the regulated community regarding reasonable break times for nursing mothers.  Comments in response to the request must be received by DOL on or before February 22, 2011.