Tuesday, June 21, 2022: Spring 2022 Regulatory Agenda Recycles OFCCP Items From Previous Agendas; WHD And NLRB List Significant Items
There are a total of 78 Rules listed on the USDOL Spring 2022 Regulatory Agenda posted on the OMB’s website, with five for OFCCP. All five OFCCP items are holdovers from previous regulatory agendas (See WIR from December 2021: “Fall Regulatory Agenda Released – Federal Subcontractors – BEWARE!”)
Three of the five OFCCP rules are in a final rule stage, while the remaining two are still in a proposed stage.
The other USDOL items include a proposed rule on heat illness prevention at work (both indoors and outdoors), a proposed rule to modernize Davis-Bacon and Related Acts’ wage determinations, and final rules that clarify when retirement plans can account for climate-related financial risks and promote Registered Apprenticeships as the gold standard of the workforce and training system, the department noted in a press release issued on Tuesday. Below, we discuss the OFCCP items and highlight a few other Rules of interest.
See our story from January 2022, where we explained the current process for disseminating the DOL’s Semiannual Regulatory Agenda: No Spoiler Alert Here – OFCCP Semiannual Regulatory Agenda Not to Have a Significant Economic Impact
The Spring 2022 Regulatory Agenda for the EEOC did not have any items listed for the Commission.
OFCCP sets next March for NPRM to “modernize” supply & service contractor regulations
Still not yet in the starting gate, OFCCP now anticipates that its Notice of Proposed Rulemaking (NPRM) to modernize the Affirmative Action Programs (AAP), recordkeeping, and other Executive Order 11246 requirements for Federal Supply and Service Contractors and Subcontractors (RIN: 1250-AA13), contained in the regulations at 41 CFR §§60-1, 2, & 20, will be published in the Federal Register in March of 2023. In addition, the proposal “will consider modifications in light of Executive Order 13988, Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation.”
January 2023 is now the anticipated date for NPRM to require reporting of subcontractors
OFCCP slated January of next year for its NPRM on “Notification of Supply and Service Subcontract Awards” (RIN: 1250-AA15). The proposal would “add provision(s) to the regulations implementing Executive Order 11246 requiring contractors to provide notice to OFCCP when they award supply and service subcontracts. The notice would include information currently unavailable to OFCCP, enabling it to schedule supply and service subcontractors for compliance evaluations.”
As we pointed out back in January of this year, it is interesting to note that there is no regulatory citation listed for this Rule, and there is no “Statement of Need.”
Final rule on rescinding Trump-era religious exemption anticipated for November 2022
This coming November 2022 remains the anticipated date for OFCCP’s Final Rule (RIN: 1250-AA09) to rescind the Trump Administration’s December 8, 2020, final rule, “Implementing Legal Requirements Regarding the Equal Opportunity Clause’s Religious Exemption” (85 FR 79324). The Biden Administration made known in the first days of its Administration that it would rescind this Rule. The Administration has been slow-walking the rescission of the Trump Rule, however, waiting to release it on the eve of the mid-term elections scheduled to be held on Tuesday November 8, 2022 to seek to galvanize and rally the liberal base of the Democrats. According to OFCCP, “[t]he rescission would ensure that the religious exemption contained in Section 204(c) of Executive Order 11246 is consistent with nondiscrimination principles of Title VII of the Civil Rights Act of 1964, as amended.” The regulatory citation for this item is 41 CFR §60-1.
Notice of the proposed rescission was published in the Federal Register on November 9, 2021 (86 FR 62115), and the public comment period closed on December 9, 2021.
We discussed this item at length in June 2021: “Here it Comes: OFCCP Plans to Modify Its PDN And Religious Exemption Rules” and November 2021: “OFCCP Published its Draft Proposal to Rescind the Trump OFCCP Religious Exemption Rule, and Not Replace It.”
OFCCP slated May 2023 for its final Rule on pre-enforcement notice and conciliation procedures
The slated date for OFCCP’s Final Rule on “Pre-enforcement Notice and Conciliation Procedures” (RIN: 1250-AA14) is now May 2023. Also known as the “PDN Rule” with PDN standing for “Pre-Determination Notice,” this proposed Rule would “modify certain provisions” in the November 2020 Final “PDN Rule” and make other related changes to the pre-enforcement notice and conciliation process. OFCCP published the NPRM on March 22, 2022 (87 FR 16138), and the comment period ended on April 21, 2022. The agency cited 41 CFR §§60-1, 2, 4, 20, 30, 40, 50, 300, & 741 as the regulatory authority for this Rule. In the meantime, evidence continues to roll in that OFCCP is already implementing its revisions to the PDN Rule in pending OFCCP audits.
For further discussion see our WIR: “OFCCP Final “PDN Rule” Now Final.”
Final “technical amendments to OFCCP regulations” Rule, expected in November, will update jurisdictional thresholds, and remove gender assumptive pronouns
This Rule (RIN: 1250-AA16) will make technical corrections to update jurisdictional thresholds for the Vietnam Era Veterans’ Readjustment Assistance Act and Section 503 of the Rehabilitation Act. The thresholds were adjusted for inflation by the Federal Acquisition Regulation Council, pursuant to section 807 of the Ronald Reagan National Defense Authorization Act, codified at 41 USC §1908, OFCCP explained. It will also correct OMB control numbers for OFCCP information collection requirements and remove gender assumptive pronouns. The regulatory citation for this item is 41 CFR §§60-1, 2, 4, 20, 30, 40, 300, 741, & 999. OFCCP anticipates a Final Rule will be published in November 2022, again shooting for the week before the mid-term elections.
WHD Stated Its Intention to Publish A Proposal on Exemptions for Executive, Administrative, Professional, Outside Sales & Computer Employees in October, 2022; Independent Contractor Rule Absent…
USDOL’s Wage and Hour Division (WHD) reported it is reviewing its Rules at 29 CFR §541. These Rules implement the exemption of bona fide executive, administrative, and professional employees from the Fair Labor Standards Act’s minimum wage and overtime requirements. October 2022 is the anticipated date for Federal Register publication of this NPRM, entitled, “Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees” (RIN: 1235-AA39).
While the Spring 2022 Regulatory agenda for WHD has no listing for its expected Independent Contractor Rule (see WHD’s June 3, 2022 blog by Acting Administrator Jessica Looman), the DOL WHD webpage that discusses the topic states that the WHD anticipates a draft NPRM “for interagency review” this summer. WHD also set public forums for this month. An Employer Forum was held this past Friday (June 24) and a Worker Forum is scheduled for June 29.
NLRB anticipates publishing next month an NPRM on its Joint Employer Rule
In the first item on its agenda, the NLRB stated that it “will engage in rulemaking on the standard for determining whether two employers, as defined in section 2(2) of the National Labor Relations Act (Act), are a joint employer under the Act” (RIN: 3142-AA21). The regulatory citation for this item is 29 CFR §102, and a NPRM is slated for July 2022.
For recent background, see our WIR Bonus Feature from March 2020: “Overview of the Trump Administration’s Government-Wide Redefinition of Who is a Joint-Employer.”
Election Protection Rule proposal slated for September 2022 publication
The Board also intends to revise the representation election procedures located at 29 CFR §103 (RIN: 3142-AA22), with a focus on amendments it issued on April 1, 2020 (85 FR 20156). We discussed these three amendments in detail in our WIR: “NLRB Final Rule – Three Amendments.”
For a related story, see last week’s WIR: NLRB Majority Holds That Trump-era “Block-Charging” Rule Does Not Prevent NLRB Staff from Issuing Merit-Based Dismissals of Election Petitions – Even Without a Full Evidentiary Hearing.”