Tuesday, June 21, 2022: Spring 2022 regulatory program recycles OFCCP elements from previous programs; WHD and NLRB list important items
There are a total of 78 rules listed on the USDOL Spring 2022 Regulatory Agenda posted on the OMB website, including five for the OFCCP. The five elements of the OFCCP are remnants of previous regulatory agendas (see December 2021 WIR: “Publication of the Fall Regulatory Agenda – Federal Contractors – ATTENTION!”)
Three of the five OFCCP rules are in the final stage, while the other two are still in the proposed stage.
Other USDOL items include a proposed rule on the prevention of heat-related illnesses in the workplace (both indoors and outdoors), a proposed rule to modernize Davis wage determinations -Bacon and related laws, and final rules that specify when pension plans can take into account climate-related effects. financial risks and promote registered apprenticeships as the benchmark for manpower and training system, the ministry noted in a Press release published on Tuesday. Below, we discuss the elements of OFCCP 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 biannual regulatory agenda: No Spoiler Alert Here – OFCCP Half-Year Regulatory Agenda Won’t Have Significant Economic Impact
The Spring 2022 regulatory program for the EEOC had no items listed for the Commission.
OFCCP sets NPRM next March to ‘modernize’ regulation of service and supply providers
Still not yet in the starting gate, OFCCP now expects its Notice of Proposed Rulemaking (NPRM) to modernize Affirmative Action Programs (AAPs), record keeping and other requirements of Executive Order 11246 to federal suppliers and contractors (RIN: 1250-AA13), contained in 41 CFR §§60-1, 2, & 20, will be published in the Federal Register in March 2023. In addition, the proposal “will review the changes in light of the Executive Order 13988Prevent and combat discrimination based on gender identity or sexual orientation.
January 2023 is now the expected date for NPRM to require subcontractor reporting
The OFCCP is scheduled for January next year for its NPRM on “Notification of Supply and Service Subcontracting Awards” (RIN: 1250-AA15). The proposal “would add provisions to the regulations implementing Executive Order 11246 requiring contractors to provide notice to the OFCCP when awarding supply and service subcontracts. The notice would contain information currently unavailable to OFCCP, allowing it to schedule supply and service contractors for compliance assessments.
As we pointed out in January of this year, it’s worth noting that no regulation citation is listed for this rule, and there is no “statement of need.”
Final rule on rescinding Trump-era religious exemption slated for November 2022
This month of November 2022 remains the scheduled date for the OFCCP Final Rule (RIN: 1250-AA09) to rescind the Trump administration’s December 8, 2020 final rule, “Implementing Legal Requirements Regarding Religious Exemption from the Equal Opportunity Clause” (85 EN 79324). The Biden administration signaled in the early days of its administration that it would repeal this rule. The administration has slowed the rollback of the Trump rule, however, waiting to release it on the eve of the midterm elections scheduled for Tuesday, November 8, 2022 to seek to galvanize and rally the liberal base of the Democrats. According to the OFCCP, “[t]Revocation would ensure that the religious exemption contained in Section 204(c) of Executive Order 11246 is consistent with the non-discrimination principles of Title VII of the Civil Rights Act of 1964, as amended. The regulatory citation for this article is 41 CFR §60-1.
Notice of the proposed cancellation was published in the Federal Register on November 9, 2021 (86 EN 62115), and the public comment period ended on December 9, 2021.
We discussed this subject at length in June 2021: “This is it: OFCCP plans to change its IDP and religious exemption rules» and November 2021 : «OFCCP released its draft proposal to override Trump’s OFCCP religious exemption rule, not replace it.”
OFCCP expected in May 2023 for its final rules on notice of execution and conciliation procedures
The scheduled date for the OFCCP’s Final Rule on “Pre-Enforcement Notices and Conciliation Proceedings” (RIN: 1250-AA14) is now May 2023. Also known as the “PDN Rule” with PDN standing for “Predetermination Notice”, this proposed rule would “amend certain provisions” in the November 2020 final “PDN Rule” and make other related changes notification prior to execution and conciliation procedure. The OFCCP published the NPRM on March 22, 2022 (87FR 16138), and the comment period ended on April 21, 2022. The agency cited 41 CFR §§60-1, 2, 4, 20, 30, 40, 50, 300, and 741 as the regulatory authority for this rule. In the meantime, evidence continues to pour in that the OFCCP is already implementing its revisions to the PDN Rule in ongoing OFCCP audits.
For more details, see our WIR: “OFCCP’s Final ‘PDN Rule’ Is Now Final.”
Final rule of “Technical Amendments to OFCCP Rules,” expected in November, will update jurisdictional thresholds and remove presumptive gender pronouns
This rule (RIN: 1250-AA16) will make technical corrections to update the jurisdictional thresholds of the Vietnam-era Veterans Rehabilitation 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, the OFCCP explained. . It will also correct OMB control numbers for OFCCP information gathering requirements and remove presumptive gender pronouns. The regulatory citation for this article is 41 CFR §§60-1, 2, 4, 20, 30, 40, 300, 741, and 999. The OFCCP anticipates that a final rule will be issued in November 2022, again in filming for the week before the midterm elections.
WHD has declared its intention to publish a proposal on exemptions for executive, administrative, professional, commercial and IT employees in October 2022; Independent contractor rule absent…
USDOL’s Wage and Hour Division (WHD) has indicated that it is revising its rules at 29 CFR §541. These rules implement the exemption of bona fide executive, administrative and professional employees from the minimum wage and overtime requirements of the Fair Labor Standards Act. October 2022 is the planned date for Federal Register publication of this NPRM, titled “Define and Delineate Exemptions for Executive, Administrative, Professional, Outside Sales and IT Employees” (RIN: 1235-AA39).
While the Spring 2022 regulatory program for WHD contains no listing for its expected independent contractor rule (see WHD blog of June 3, 2022 by the acting administrator Jessica Loman), the DOL WHD web page that discusses the subject states that the WHD is planning a draft NPRM “for interagency review” this summer. WHD has also set up public forums for this month. A Employer Forum took place last Friday (June 24) and a Workers’ Forum is scheduled for June 29.
The NLRB plans to issue an NPRM on its joint employer rule next month
In the first article on his agendathe NLRB said it “will engage in the development of rules on the standard for determining whether two employers, as defined in section 2(2) of the National Employment Relations Act (the ), are a joint employer under the law” (RIN: 3142-AA21). The regulatory citation for this article is 29 CFR §102, and an NPRM is scheduled for July 2022.
For recent context, check out our March 2020 WIR bonus feature:Insight into the Trump administration’s government-wide redefinition of who is a co-employer.”
Proposed Voter Protection Rule expected to be released in September 2022
The Board also intends to revise the representation election procedures located at 29 CFR §103 (RIN: 3142-AA22), emphasizing the changes it published on April 1, 2020 (85 EN 20156). We have discussed these three changes in detail in our WIR:NLRB Final Rule – Three Changes.”
For a related story, see Last Week’s WIR: NLRB Majority Holds That Trump-era”Bulk billing rule does not prevent NLRB staff from issuing merit-based dismissals of campaign petitions – even without a full evidentiary hearing.”