Once. Twice. Three Times for JE. This week, the Administration released its Fall 2019 Regulatory Agenda, which identifies the work expected to be done by the regulatory agencies during the next year. Key among the labor issues is joint employment, with the Department of Labor's Wage & Hour Division, the National Labor Relations Board, and the Equal Employment Opportunity Commission all pledging to take it on. WHD and NLRB are out in front, with final rules expected next month. EEOC plans to publish its own proposed rule by the end of the year.
WHD Expects a Busy Year. In addition to joint employment, WHD expects regulatory activity on a wide range of topics, including tip credit (proposed rule pending), fluctuating workweek (proposed rule pending), regular rate (final rule expected this month), reasonable cost of board, lodging, and other facilities (proposed rule expected June 2020), FMLA (request for information expected this month), and the section 7(i)/commissioned sales provisions (proposed rule expected November 2020). Add to that the continued flow of opinion letters, and it is clear that WHD anticipates keeping its foot firmly planted on the pedal during the election year.
Health & Safety Agencies Outline Aggressive Agenda. Between them, OSHA and MSHA plan 25 agenda items for the next 12 months, from prerule activities to proposed rules to final rules, on a variety of issues, including lock-out/tag-out, tree care, prevention of workplace violence in health care, crystalline silica exposure, powered industrial trucks, exposure to beryllium, and exposure of underground miners to diesel exhaust. OSHA, of course, lacks a Senate-confirmed leader (and no one has been nominated), making an already ambitious agenda even more so.
And Let's Not Forget Immigration. Both DOL and the Department of Homeland Security have identified immigration-related regulatory activity for the next year. DHS plans to make changes to the EB-5 immigrant investor program, the H-1B program, the H-4 visa, the L-1 visa, and asylum rules as part of a regulatory agenda with about 30 items for U.S. Citizenship and Immigration Services alone. Forbes has a detailed description of the USCIS agenda. DOL's immigration agenda is far more restrained, with the Employment and Training Administration taking a look as some technical issues under the H-2A and H-2B visa programs.
EEOC and NLRB Pushing Regs, Too. In addition to the joint employment rulemakings discussed above, both the EEOC and the NLRB plan to take on some significant regulatory issues. With its quorum in full effect, EEOC has plans to address ADA and GINA regulations, as well as to explore the possibility of a new or different pay survey. The NLRB plans to stay busy with proposals on access to employer property and graduate students, and final rules on union elections (i.e., revising the "ambush" election rule).
EEO-1 Hearing Held. Speaking of the EEOC and pay surveys, yesterday, the Commission held a public hearing on the proposed changes to the EEO-1 report. The panelists' testimony can be found here.
Workplace Violence Prevention Act Passes. Today, the House passed the Workplace Violence Prevention for Health Care and Social Services Workers Act (H.R. 1309). This bill would require DOL to promulgate an OSHA standard requiring employers in the identified sectors to develop and implement plans for protecting workers from workplace violence. The Trump Administration has issued a veto threat for the bill, noting that the proposed standards are California's standards, which may not be appropriate for other states.
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