Agencies Update Regulatory Agenda for 2019 and Beyond



The federal government’s Spring 2019 Unified Agenda of Regulatory and Deregulatory Actions (regulatory agenda), which provides insight into federal agencies’ priorities for the near and long term, was released on May 22, 2019. The latest regulatory agenda provides revised rulemaking timelines, and includes some new areas of focus. This article highlights some notable rules and their projected progress through the rulemaking process.

Department of Labor (regular rule list; long-term list)

The Department lists a number of proposed regulations on its agenda, following a flurry of regulatory activity in March and April 2019, when it issued three significant proposed rules within two weeks.1  Many in the employer community have been eyeing progress of the following items.

Wage and Hour Division

  • Joint Employment. The Notice of Proposed Rulemaking (NPRM) will propose updates on how businesses can determine whether they are “joint employers” for purposes of the Fair Labor Standards Act. The NPRM comment period will end on June 10, 2019. The WHD has not set a projected date for this final rule.
  • White-Collar Overtime Exemption. Comments closed on May 21, 2019 for the NPRM period regarding appropriate salary cut-offs for exempted white-collar employees. The WHD noted that the Department will “be informed by comments received in response to its NPRM” in the final rule, but does not give an estimate on when the final rule will be released.
  • Regular Rate. The WHD is proposing to update regular pay rate requirements for the purpose of determining overtime pay to help employers determine whether “more modern” forms of compensation should be included in the regular rate of pay. The comments on this proposed rule close on May 28, 2019, but no final rule date was provided.
  • Tip Regulations. The DOL has pushed out to December 2019 the NPRM regarding how the Department will align 2018 FLSA amendments for tip ownership with DOL regulations. The rulemaking will also address circumstances for when employers may take a tip credit to satisfy minimum wage requirements when employees perform “dual jobs.”
  • Request for Information (RFI): The Family and Medical Leave Act of 1993. The Department is seeking comments to find ways to improve FMLA regulations to both protect and provide for the needs of workers and to reduce administrative burdens for employers. The projected date for the RFI is April 2020.

Office of Federal Contract Compliance Programs

  • Affirmative Action and Nondiscrimination Obligations of Federal Contractors and Subcontractors: TRICARE and Certain Other Healthcare Providers. The Office of Federal Contract Compliance Programs (OFCCP) plans to release a NPRM to implement the nondiscrimination and affirmative action provisions of Executive Order 11246, section 503 of the Rehabilitation Act, and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 as related to the obligations of TRICARE or certain other healthcare providers as federal contractors and subcontractors. The proposal would limit “and otherwise alter” the obligations of TRICARE and other healthcare providers under these authorities, and is slated for May 2019.   

Employee Benefits Security Administration

  • Definition of Employer Under § 3(5) of ERISA: Association Retirement Plans and Other Multiple Employer Plans. The Employee Benefits Security Administration plans to release its final rule in June 2019 to establish criteria under the Employee Retirement Income Security Act (ERISA) on what entities are “employers” that may jointly establish a pension benefit plan.2

Occupational Safety and Health Administration

  • The Occupational Safety and Health Administration intends to issue a proposed rule to memorialize its position that the antiretaliation provisions in § 1904.35(b) do not ban post-incident drug testing or incident-based incentive programs.  The NPRM is scheduled for publication in September 2020, so it is considered a longer-term action item.3

Employment and Training Administration

  • Apprenticeships. Though it has taken longer than expected, the DOL's Employment and Training Administration (ETA) is slated to issue a NPRM in June 2020 to establish guidelines for third parties to accredit high-quality, industry-recognized apprenticeship programs.

National Labor Relations Board (regular rule list; long-term list)

  • Joint-Employer Rulemaking. The NLRB continues its work on a rule to determine what constitutes joint-employer status under the NLRA. The NPRM comment period ended in January 28, 2019, and the Board received almost 29,000 comments in response to the proposed rule.  Review of those comments is underway, although a date for expected publication of a final rule was not announced in the agenda.
  • Access Rule. The National Labor Relations Board expects to publish a NPRM regarding the “standards under the National Labor Relations Act for access to an employer's private property.” The Notice is slated for September 2019 and may reflect an attempt by the Board to revisit its prior decision in Roundy’s Inc. and Milwaukee Building and Construction Trades Council, AFL–CIO, in which the NLRB ordered a business to allow a union access to the premises.
  • Student/Employee Status. The NLRB will also release a NPRM to establish standards regarding whether student aids at a university can be considered employees under the National Labor Relations Act. This NPRM is also scheduled for publication in September 2019.
  • Blocking Charge, Voluntary Recognition, and 9(a). The Board will consider “blocking” charges, or when the NLRB can halt a decertification election, and the timing of decertification elections. These election bar policies are expected to be addressed in an August 2019 NPRM.
  • Revision of Representation Case Rules. The NLRB has issued plans to revise the representation election regulations, specifically to focus on amending the Board’s representation case procedures from the rule published on December 15, 2015, otherwise known as the “quickie election” rule.4 This rulemaking had a comment period in early 2018, but the NPRM timeframe is still to be determined.

Equal Employment Opportunity Commission (regular rule list)

  • Amendments to Regulations Under the Americans With Disabilities Act. As expected, the EEOC plans to amend its regulations related to incentivizing employer-sponsored voluntary wellness programs under the Americans with Disabilities Act (ADA) in response to the U.S. District Court for the District of Columbia opinion in AARP v. EEOC.5 EEOC staff is working on an NPRM, which is expected in December 2019.
  • Amendments to Regulations Under the Genetic Information Nondiscrimination Act of 2008. Relatedly, the EEOC plans to issue revised wellness rules under the Genetic Information Nondiscrimination Act (GINA). The NPRM for amended regulations regarding wellness programs under the GINA are also slated for December 2019.

Department of Homeland Security (regular rule list)

  • Strengthening the H-1B Nonimmigrant Visa Classification Program. Out of the many proposed and final rules from the Department of Homeland Security (DHS), employers should be aware of the U.S. Citizenship and Immigration Services’ intent to propose a rule to “increase focus on obtaining the best and the brightest foreign nationals via the H-1B program.” This rule will propose that more requirements be added to the definition of employment and better define the employer-employee relationship. It also seeks to create additional pay requirements so that H-1B visa holders will earn appropriate wages. DHS plans to release the NPRM in August 2019.

What’s Next?

Although the estimated completion dates on the regulatory agenda are more aspirational than set in stone, they do provide employers with a loose roadmap of where the agencies will focus their rulemaking efforts in the coming months or even years. Littler will continue to monitor these proposals and report on any notable developments.



1 Tammy McCutchen, Maury Baskin and Michael J. Lotito, DOL Issues Third Proposed Rule in Two Weeks, This Time on Joint Employment, Littler ASAP (Apr. 1, 2019).


2 Ilyse Schuman, Russell Chapman, and Michael J. Lotito, DOL Issues Proposal Governing Association Health Plans, Littler ASAP (Jan. 5, 2018).

3 For discussion, see Thomas Metzger and Bryan Gramlich, OSHA Issues Final Rule Rescinding Certain Recordkeeping Requirements and Clarifying Guidance on Drug Testing and Incentive Programs, Littler ASAP (Jan. 31, 2019). The preamble to this final rule reiterates OSHA’s position regarding the drug-testing issue, but the rule itself does not specifically amend its regulations to formalize this policy, as that was not the subject of this rulemaking.

4 Alan I. Model and Jason J. Silver, The NLRB Issues its Long-Anticipated “Quickie Election” Rule, Making Union Organizing Faster and Easier, Littler Insight (Dec. 15, 2014).

5 Russell D. Chapman, EEOC Must Reconsider its Wellness Regulations, Littler ASAP (Aug. 23, 2017).

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Littler | Attorney Advertising

Written by:


Littler on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at:

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit
  • New Relic - For more information on New Relic cookies, please visit
  • Google Analytics - For more information on Google Analytics cookies, visit To opt-out of being tracked by Google Analytics across all websites visit This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at:

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.