On January 4, 2023, the Biden administration released its long-awaited Fall 2022 Unified Agenda of Regulatory and Deregulatory Actions.  Typically, these semi-annual agendas are issued in the spring and fall and outline federal agency goals for the months ahead.  Although there are no legal implications regarding the administration’s failure to issue the agenda in a timely manner, there are important considerations for the regulated community.  For example, the lack of transparency in knowing what to expect makes it more difficult to hold the administrative state accountable for its plans. Additionally, not knowing regulatory priorities can have an impact on budget and resource planning for employers, especially during a time of high inflation and anticipated economic recission.  Congress must also have keen insight of the administration’s regulatory plans to assess its budget requests and operations.

The key labor and employment regulatory actions included in the fall agenda are listed below:

National Labor Relations Board (NLRB)

• Joint Employer – A final rule is slated for August 2023.  The Board issued a proposed rule in September 2022 broadening the standard for determining whether two employers, as defined in Section 2(2) of the National Labor Relations Act, are joint employers under the NLRA, thereby expanding joint employment liability.  The public comment period closed on December 21, 2022.

• Election Protection Rule – A final rule is slated for August 2023.  The Board issued a proposed rule on November 4, 2022, aimed at “revising the representation election procedures located at 29 CFR part 103, with a focus on the amendments issued on April 1, 2020.” In its prior proposal, the Board’s Republican majority amended policies relating to blocking charges, the voluntary recognition bar, and the contract bar in the construction industry.

DOL/Wage and Hour Division (WHD)

• Overtime Rule / White Collar Exemptions – A Notice of Proposed Rulemaking (NPRM) is slated for May 2023. The WHD continues to the review the overtime regulations, which implement the exemption of bona fide executive, administrative, and professional employees from the Fair Labor Standards Act’s minimum wage and overtime requirements. The Department has not specified what changes it is considering but has held several industry stakeholder calls to gather information and has also conducted regional listening sessions around the country with the regulated community. An NPRM was last scheduled for October 2022. 

• Employee or Independent Contractor Classification – A final rule is slated for May 2023. On January 7, 2021, the Department under the prior administration published a final rule on independent contractor status under the FLSA. The incoming Biden administration subsequently published final rules to delay and withdraw the 2021 rule.  However, in March 2022, a district court in the Eastern District of Texas vacated the Department’s delay and withdrawal rules, concluding that the 2021 rule became effective as of March 8, 2021. The Department continues to believe that the 2021 rule does not fully comport with the FLSA’s text and purpose as interpreted by courts and has proposed to rescind the 2021 rule and set forth an analysis for determining independent contractor status under the FLSA that “is more consistent with existing judicial precedent and the Department’s longstanding guidance prior to the 2021 rule.”   

• Updating Davis-Bacon Regulations – A final rule is slated for February 2023. On March 18, 2022, the Department published an NPRM indicating its intent to undo most of the 1982 modifications made by the Reagan administration, while at the same time making more than 50 significant changes to Davis-Bacon Act (DBA) enforcement.  DOL indicates that its DBA regulations affect work totaling more than $200 billion annually involving more than 1.2 million construction workers. The public comment period closed on May 17, 2022.  Many government construction contractors and industry groups filed comments expressing concern that the Department’s proposed return to policies of the 1970s will result in inflated wage rates that are inconsistent with the DBA and will exacerbate the current inflation of in the U.S. economy. The Department was scheduled to issue a final rule in December 2022. 

DOL/Office of Labor-Management Standards (OLMS)

• Form LM-10 Employer Report (“Persuader Rule”) – A final rule is slated for February 2023.  On September 13, 2022, the agency issued a proposed rule that would expand reporting requirements for businesses that hire consultants to help educate (“persuade”) employees regarding organizing and collective bargaining rights and activities. Specifically, the proposal would require employers to disclose on their Form LM-10 whether the filer is a federal contractor and specify the agency or agencies that contract with them for work.  The public comment period ended on October 13, 2022.   

DOL/Employee Benefits Security Administration (EBSA)

• Definition of the Term “Fiduciary” – This change is at the proposed rule stage with no timeline given.  This rulemaking would amend the regulatory definition of the term fiduciary to more appropriately define when persons who render investment advice for a fee to employee benefit plans and IRAs are fiduciaries within the meaning of ERISA and the Internal Revenue Code.

• Definition of “Employer” Under ERISA-Association Health Plans – This change is at the proposed rule stage with no timeline given.  This rulemaking will explore whether to withdraw, or withdraw and replace, its regulation published in 2018, which established an alternative set of criteria for determining when an employer association may act indirectly in the interest of an employer for purposes of establishing a multiple employer group health plan. The U.S. District Court for the District of Columbia vacated portions of the final rule in a 2019 decision in New York v. United States Department of Labor.  EBSA plans reevaluate the criteria for a group or association of employers to be able to sponsor a multiple employer group health plan.   

Occupational Safety and Health Administration (OSHA)

• Prevention of Workplace Violence in Heath Care and Social Assistance – This is at the pre-rule stage. OSHA published a Request for Information (RFI) in December 2016, soliciting information primarily from health care employers, workers and other subject matter experts on impacts of violence, prevention strategies, and other information useful to the agency. A broad coalition of labor unions and the National Nurses United each petitioned OSHA for a standard preventing workplace violence in health care.  In January 2017, OSHA granted the petitions.  In an effort to develop a workplace standard, OSHA is preparing a Small Business Regulatory Enforcement Fairness Act (SBREFA) panel.   

• Heat Illness in Prevention in Outdoor and Indoor Work Settings – This is at the pre-rule stage. OSHA previously published an advance notice of proposed rulemaking (ANPRM) on October 27, 2021, to explore rulemaking on a heat stress standard. Given the broad scope of regulatory efforts and technical considerations, the agency is continuing its dialogue and engagement with stakeholders to explore a rulemaking.

• Infectious Disease – An NPRM is slated for September 2023.  OSHA continues to examine regulatory alternatives for control measures to protect employees from infectious disease exposure to pathogens that can cause significant disease.  The agency cites workplaces where such control measures might be necessary including health care, emergency response, correctional facilities, homeless shelters, drug treatment programs, and other occupational settings where employees can be at increased risk of exposure to potentially infected people. 

• Occupational Exposure to COVID-19 in Healthcare Settings – A final rule was slated for December 2022; OSHA is continuing to work towards a final standard. This rulemaking derives from OSHA’s emergency temporary standard on the healthcare industry. The agency believes the danger faced by healthcare workers continues to be of the highest concern and measures to prevent the spread of COVID-19 are still needed to protect them. 

• Improve Tracking of Workplace Injuries and Illnesses – A final rule is slated for March 2023.  In March 2022, OSHA issued a proposed rule that would amend its occupational injury and illness recordkeeping regulation to require certain employers, those with 100 or more employees in certain designated industries, to electronically submit injury and illness information annually.  The comment period closed June 30, 2022. 

• Worker Walkaround Representative Designation Process – A Notice of Proposed Rulemaking is slated for May 2023.  This rulemaking will clarify the right of workers and certified bargaining units to specify a worker or union representative to accompany an OSHA inspector during the inspection process/facility walkaround, regardless of whether the representative is an employee of the employer, if in the judgment of the Compliance Safety and Health Officer such person is reasonably necessary to an effective and thorough physical inspection. 

• Lock Out/Tag Out Update – An NPRM is slated for July 2023.  This rulemaking will address recent technological advancements that employ computer-based controls of hazardous energy that are in conflict with OSHA’s existing lock-out/tag-out standard. 

Many of these pending and future rulemakings outlined above are expected to face scrutiny via congressional oversight in the newly Republican-controlled House of Representatives.   In particular, the House Education and Labor Committee (expected to be renamed the “House Education and Workforce Committee” by the new Republican majority) is expected to pursue aggressive oversight of the Department of Labor and National Labor Relations Board.  Although Committee chairs have yet to be selected given the ongoing stalemate to confirm the House Speaker, Representative Virginia Foxx (R-NC), who previously served as the minority Ranking Member of the Committee, is a strong contender for the Committee Chairmanship and someone dedicated to strong oversight.¹

Littler Workplace Policy Institute (WPI) will continue to track these regulatory matters and provide relevant updates.²