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.Continue Reading Obama Administration Announces Wage & Hour Regulatory Initiatives