The Department of Labor (DOL) on July 3 released its spring regulatory agenda outlining the regulatory activities of its sub-agencies for the remainder of 2013. The regulatory agenda lists the priorities of the administration and the rulemakings they expect to release this year; however, DOL is not required to adhere to the timeline.

OFCCP Affirmative Action
The Office of Federal Contract Compliance Programs (OFCCP) is proceeding with two affirmative action requirements for federal contractors and subcontractors. 

A final rule is listed for July that will update existing requirements for federal contractors and subcontractors under section 503 of the Rehabilitation Act of 1973, but does so by mandating arbitrary quotas (referred to by the agency as “goals”) for hiring disabled workers by all contractors with a government contract of $50,000 and 50 or more employees. In addition, the proposal requires construction contractors to conduct job utilization analyses and file written reports for the first time, despite a long-held exemption due to the unique nature of construction work. 

ABC has been critical of this rule because of the significant burden that would be placed on construction contractors. Although OFCCP estimates that compliance with the proposal would take between 5-30 minutes and cost $81 million annually, ABC believes those estimates are significantly understated for the construction industry, which will be required to perform utilization analyses on its workforce for the first time. ABC also argued the rule fails to take into account differences between industries and the unique challenges confronting construction contractors – including the fact that construction is still one of the most physically demanding and potentially dangerous industries.

In addition, OFCCP continues to list a proposed rule date of October for changes to existing affirmative action obligations for federal contractors in the construction industry, which is unchanged from the last regulatory agenda. 

DOL Persuader
DOL also lists on the agenda a final rule which would greatly expand the circumstances in which third party advice, used by employers to inform employees about their rights to collective bargaining, would have to be reported by both the employer and the third party (which would include attorneys and association staff). The disclosure requirement, as written, includes money paid for such services. 

ABC opposes the "persuader" rule because it would deprive employers of their right to free speech, freedom of association, and legal counsel, and would deprive employees of the right to obtain balanced and informed input from both sides as they decide whether to represented by a union. 

The “persuader” final rule is listed on the agenda for November – a change from the previous agenda which showed a date of April. The agenda also has listed a date of June 2014, for issuing a proposed rule that will expand the LM-21 Reporting Form for consultants, or “persuaders.” 

WHD “Right to Know”
A Wage and Hour Division rulemaking, referred to as “Right to Know,” in which employers would be required to provide written analyses to workers classified as independent contractors, as well as any employees deemed to be exempt from overtime under the Fair Labor Standards Act (FLSA), remains in long-term action. 

ABC has expressed concerned that such a complex rulemaking would significantly burden employers, serve merely as an enforcement tool, and increase the number of FLSA lawsuits concerning exemption and misclassification issues. In addition, ABC filed comments in March expressing concern over a DOL proposed worker classification survey that would “collect information about employment experiences and workers’ knowledge of basic employment laws and rules so as to better understand employees’ experience with worker misclassification.”

DOL moved this proposed rule to long-term action in January 2012, after taking the first meaningful steps toward its development in the summer of 2010; however, the agency could resurrect this rulemaking at any time using the data gathered through the DOL survey and ABC continues to closely monitor the proposal.