U.S. Department of Labor

Fall 2015 Statement of Regulatory Priorities

Introduction

The Department's Fall 2015 Regulatory Agenda is driven by Secretary Perez's commitment to building a stronger America through shared prosperity. This means more opportunity for workers to acquire the skills they need to succeed, to earn a fair day's pay for a fair day's work, for workers and employers to compete on a level playing field, for veterans to thrive in the civilian economy, for people with disabilities to be productive members of the labor force, for workers to retire with dignity, and for people to work in a safe environment with the full protection of our anti-discrimination laws.

In recent years, the Department of Labor has taken bold steps to use our regulatory authorities to address many of the most critical challenges facing workers and their families.

We took action to give home care workers a raise by guaranteeing them minimum wage and overtime for the hard work that they do. We required mine operators to limit miners' exposure to coal dust, which will dramatically reduce black lung disease and save lives.

We updated our regulations to require federal contractors and subcontractors to treat applicants and employees without regard to their sexual orientation or gender identity.

Along with the Department of Education, we have proposed new regulations that will transform our nation's workforce system, giving workers the chance to develop the skills that will prepare them to succeed in 21^st century jobs and careers. We proposed extending overtime protections to roughly 5 million workers.

We proposed important new conflict of interest protections for 401(k) and IRA investors that would require retirement advisors to put their clients' best interests before their own profits.

Working with the Federal Acquisition Regulatory Council we proposed regulations that will implement the President's Fair Pay and Safe Workplaces Executive Order, holding federal contractors accountable when they put workers' safety, hard-earned wages and basic workplace rights at risk.

We finalized a rule to help close the persistent pay gap that exists between men and women by providing employees working on federal contracts with real pay transparency and openness enabling them to freely talk about their compensation.

The 2015 Regulatory Plan highlights the Labor Department's most noteworthy and significant rulemaking efforts, with each addressing these top priorities of its regulatory agencies: Employee Benefits Security Administration (EBSA), Employment and Training Administration (ETA), Mine Safety and Health Administration (MSHA), Office of Federal Contract Compliance Programs (OFCCP), Occupational Safety and Health Administration (OSHA), Office of Labor-Management Standards (OLMS), Office of Workers' Compensation Programs (OWCP), Veterans' Employment Service (VETS), and Wage and Hour Division (WHD). These regulatory priorities exemplify the five components of the Secretary's opportunity agenda:

training more people, including veterans and people with disabilities, to have the skills they need for the in-demand jobs of the 21st century;

ensuring that individuals have the peace of mind that comes with access to health care, retirement, and federal workers' compensation benefits when they need them;

safeguarding a fair day's pay for a fair day's work for all hardworking Americans, regardless of race, gender, religion, sexual orientation, or gender identity;

giving workers a voice in their workplaces; and

protecting the safety and health of workers so they do not have to risk their lives for a paycheck.

Under Secretary Perez's leadership, the Department continues its commitment to ensuring that collaboration, consensus-building and extensive stakeholder outreach are integral to all of its regulatory efforts. Successful rulemaking requires that we build a big table and keep an open mind.

Training More Workers and Job-Seekers for Twenty-First Century Jobs

Sustained economic growth requires a fundamental transformation of the workforce development system, building new partnerships, engaging employers, emphasizing proven strategies like apprenticeships, and preparing people for the demands of the 21st century economy as never before. The Department's regulatory priorities reflect the Secretary's vision for a modern job-driven workforce system that helps businesses stay on the competitive cutting edge and helps workers punch their ticket to the middle class.

ETA issued a Notice of Proposed Rulemaking (NPRM) on April 16, 2015, that implements the important changes made to the public workforce system by the Workforce Innovation and Opportunity Act (WIOA) (Pub. L. 113-128), signed by the President on July 22, 2014, and replacing the Workforce Investment Act of 1998 (WIA) and amending the Wagner-Peyser Act. This NPRM enables the Department to implement WIOA, empowering the public workforce system and its partners to increase employment, retention, and earnings of participants, meet the skill requirements of employers, and enhance the productivity and competitiveness of the nation.[1] The Department is analyzing comments received and developing a Final Rule. In addition, as required by WIOA, the Departments of Education and Labor issued a joint NPRM on April 16, 2015, to implement the changes that WIOA makes to the public workforce system regarding Combined and Unified State Plans, performance accountability, and the one-stop delivery system and one-stop centers.[2] The Departments are analyzing the comments received and developing a Final Rule.

The Department's Civil Rights Center (CRC) will issue a proposed rule to implement the nondiscrimination provisions in Section 188 of WIOA. The rule would update the regulations implementing the nondiscrimination obligations in Section 188 of WIA to address current compliance issues in the workforce system, and to incorporate developments and interpretations of existing nondiscrimination law into the workforce development system. To ensure no gap in coverage between the effective date of WIOA and this rulemaking, CRC issued a Final Rule that makes only technical revisions to the WIA Section 188 rule, changing references from "WIA" to "WIOA."[3] The current Final Rule ultimately would ultimately be superseded by any Final Rule arising from the subsequent NPRM.

ETA issued a NPRM on November 6, 2015 that proposes updated equal opportunity regulations implementing the National Apprenticeship Act of 1937, which prohibit discrimination in registered apprenticeship on the basis of race, color, religion, national origin, and sex, and which require that program sponsors take affirmative action to provide equal opportunity. Most notably, the proposed rule would update equal opportunity standards to include age (40 and older) and disability among the list of protected bases. It would also strengthen the affirmative action provisions by detailing mandatory actions that sponsors must take, and by requiring affirmative action for individuals with disabilities.[4]

Ensuring Access to Health Care, Retirement, and Workers' Compensation Benefits

The American Dream does not end when a person retires. A financially secure retirement is a fundamental pillar of the middle class. People need access to retirement savings vehicles; and when they work hard and save responsibly, they need access to sound retirement investment advice from someone looking out for their best interest. The Department has a regulatory program designed do exactly that.

Last spring EBSA proposed a rule to help assure workers' retirement security by clarifying the circumstances under which a person will be considered a "fiduciary" when providing investment advice related to retirement plans, individual retirement accounts, and other employee benefit plans, and to participants, beneficiaries, and owners of such plans and accounts. The proposed rule includes a prohibited transaction exemption for any advice that raises any conflict of interest concerns so that the advice has to first be provided pursuant to a contract where the advisor agrees to provide the advice in the best interest of the client. The underlying principle is very simple and rooted in basic common sense: if you want to give financial advice, you have to put your clients' best interests first, and not your own. EBSA continues to review the extensive public comments submitted on the proposed rule.[5]

EBSA recognizes that around one-third of American workers lack access to a retirement plan at work. Inadequate retirement savings places stress on various state and federal retirement income support programs. Some states have passed laws to set up state-based auto-enrollment IRA arrangements for workers whose employers don't offer a plan. However, many of these states remain concerned about preemption by the Employee Retirement Income Security Act of 1974. At the President's direction on July 13, 2015, EBSA plans to publish a proposed rule to clarify how states can move forward, including with respect to requirements to automatically enroll employees, and offer coverage in ways that are consistent with federal laws governing employee benefit plans.

EBSA will also continue to issue guidance implementing the health reform provisions of the Affordable Care Act, giving more people greater access to quality medical care. EBSA's regulations reduce discrimination in health coverage, promote better access to quality coverage, and protect the ability of individuals and businesses to keep their current health coverage. Many of these regulations are joint rulemakings with the Departments of Health and Human Services and Treasury.

The Department also promulgates regulations to ensure that federal workers' compensation benefits programs are fairly administered:

OWCP will issue a Final Rule under the Black Lung Benefits Act that will address claimants' and coal mine operators' responsibility to disclose medical information developed in connection with a claim.[6] In addition, the Final Rule may also clarify a coal mine operator's liability for paying benefits while seeking modification of a decision to award benefits and may clarify the evidence submission limitations.

OWCP will issue an additional NPRM under the Black Lung Benefits Act that would address how medical providers are reimbursed for covered services rendered to coal miners, including the possibility of modernizing and standardizing payment methodologies and fee schedules.[7]

Safeguarding Fair Pay for All Americans

The Department's regulatory agenda prioritizes ensuring that all Americans receive a fair day's pay for a fair day's work, and are not discriminated against with respect to hiring, employment, or benefits on the basis of race, gender, sexual orientation, or gender identity. The Department takes a robust approach to implementing its wage-and-hour and nondiscrimination regulations through education, outreach and strategic enforcement across industries. These regulations are grounded in a commitment to an inclusive and diverse workforce and rewarding hard work with a fair wage to provide workers with a real pathway to middle class jobs.

WHD plans to publish a Final Rule revising the Fair Labor Standards Act's (FLSA's) overtime exemptions, as directed by a March 2014 Presidential Memorandum. The FLSA generally requires covered employers to pay their employees at least the federal minimum wage for all hours worked, and one-and-one-half times their regular rate of pay for hours worked in excess of 40 in a workweek ("overtime"). However, there are a number of exemptions from the FLSA's minimum wage and overtime requirements, including an exemption for bona fide executive, administrative, or professional employees. In line with the Presidential Memorandum directing the Secretary to modernize and streamline the existing overtime regulations for these "white collar" employees to ensure that hardworking middle-class workers are not denied overtime protections that Congress intended, the Department issued an NPRM that would raise the salary threshold. The Department is currently analyzing comments.[8]

WHD will issue a proposed rule to establish the ability of employees of federal contractors to earn seven days of paid sick leave per year, implementing Executive Order 13706, signed by President Obama on September 7, 2015, enabling these workers to use leave to care for themselves, family members, or loved ones without fear of losing their paychecks or their jobs.

Giving Workers a Voice in Their Workplaces

There is a direct link throughout our nation's history between a vibrant middle class and the power of worker voice. The economy is strong when the middle class is strong, and the middle class is strong when workers have a seat at the table, when they have a chance to organize and negotiate for their fair share of the value they helped create. By contrast, it's not a coincidence that middle-class wage stagnation coincides with a decline in the percentage of workers represented by unions. The Department's regulatory program therefore promotes policies that give workers a voice on the job.

OFCCP recently issued a Final Rule implementing Executive Order 13665, signed by the President on April 8, 2014, prohibiting discrimination by Federal contractors and subcontractors against certain of their employees for disclosing compensation information. This Executive Order was intended to address policies that limit the ability to advocate for themselves about their pay and that prohibit employee conversations about compensation, which can serve as a significant barrier to Federal enforcement of the laws against compensation discrimination.[9]

OLMS plans to publish a Final Rule that will better align our regulations with the statutory text of the Labor-Management Reporting and Disclosure Act (LMRDA) to create greater balance between union and employer/consultant reporting requirements in situations where employers engage consultants to persuade employees concerning their rights to organize and bargain collectively. This is one important step to enhance workers' abilities to make informed choices about representation.[10]

Protecting the Safety and Health of Workers

No one should have to sacrifice their life for their livelihood, and a nation built on the dignity of work must provide safe working conditions for its people. Through our rulemaking, we are committed to protecting workers in all kinds of workplaces, including above- and below-ground coal and metal/nonmetal mines, and we want to ensure that benefits programs are available to workers and their families when they are injured on the job. So many workplace injuries, illnesses and fatalities are preventable. They not only put workers in harm's way, they jeopardize their economic security, often forcing families out of the middle class and into poverty. The Department's safety and health regulatory proposals are based on the responsibility of employers to provide workers with workplaces that do not threaten their safety or health and we reject the false choice between worker safety and economic growth. Our efforts will both save lives and improve employers' bottom lines.

OSHA's top priority is a Final Rule aimed at curbing lung cancer, silicosis, chronic obstructive pulmonary disease and kidney disease in America's workers by lowering worker exposure to crystalline silica, which kills hundreds and sickens thousands more each year. OSHA estimates that the proposed rule would ultimately save nearly 700 lives and prevent 1,600 new cases of silicosis annually. OSHA held public hearings over nearly a month last spring in Washington, DC, during which over 200 industry, labor, and public health stakeholders participated. The post-hearing brief period ended on August 18, 2014.[11] As a part of the Secretary's strategy for securing safe and healthy work environments, MSHA will utilize information provided by OSHA to undertake regulatory action related to silica exposure in mines.[12]

OSHA is developing a Final Rule that will address employers' electronic submission of data required by agency regulations governing the Recording and Reporting of Occupational Injuries. An updated and modernized reporting system would enable a more efficient and timely collection of data - including by leveraging data already maintained electronically by many large employers -- and would improve the accuracy and availability of relevant records and statistics, in addition to leveraging data already maintained electronically by many large employers.^{^[13]}

MSHA issued a proposed rule that would require underground mine operators to equip certain mobile machines with proximity detection systems.[14] This builds on a Final Rule issued in January 2015 that addressed the danger that miners face when working near continuous mining machines in underground coal mines.[15]

Regulatory Review and Burden Reduction

On January 18, 2011, the President issued Executive Order (E.O.) 13563, entitled "Improving Regulation and Regulatory Review." The Department is committed to smart regulations that ensure the health welfare and safety of all working Americans and foster economic growth, job creation, and competitiveness of American business. The Department's Fall 2015 Regulatory Agenda also aims to achieve more efficient and less burdensome regulations through a retrospective review of the Labor Department regulations.

In August 2011, as part of a government-wide response to the E.O., the Department published its "Plan for Retrospective Analysis of Existing Rules." (This plan, and each subsequent update, can be found at www.dol.gov/regulations/.) The current regulatory agenda includes 23 retrospective review projects, which are listed below pursuant to section 6 of E.O. 13563. More information about completed rulemakings no longer included in the plan can be found on www.Reginfo.gov.

Agency	Regulatory Identifier Number	Title of Rulemaking	Whether it is Expected to Significantly Reduce Burdens on Small Businesses
EBSA	1210-AB47	Amendment of Abandoned Plan Program	Yes
EBSA	1210-AB63	21st Century Initiative to Modernize the Form 5500 Series and Implementing and Related Regulations	To Be Determined
ETA	1205-AB59	Equal Employment Opportunity in Apprenticeship and Training, Amendment of Regulations	To Be Determined
ETA	1205-AB62	Implementation of Total Unemployment Rate Extended Benefits Trigger and Rounding Rule	No
ETA	1205-AB75	Modernizing the Permanent Labor Certification Program (PERM)	To Be Determined
MSHA	1219-AB72	Criteria and Procedures for Proposed Assessment of Civil Penalties (Part 100)	To Be Determined
OFCCP	1250-AA05	Sex Discrimination Guidelines	To Be Determined
OSHA	1218-AC34	Bloodborne Pathogens	To Be Determined
OSHA	1218-AC67	Standard Improvement Project - Phase IV (SIP IV)	To Be Determined
OSHA	1218-AC74	Review/Lookback of OSHA Chemical Standards	To Be Determined
OSHA	1218-AC81	Cranes and Derricks in Construction: Amendments	Yes
OSHA	1218-AC82	Process Safety Management and Flammable Liquids	To Be Determined
OSHA	1218-AC87	Updating OSHA Standards Based on National consensus Standards (Eye and Face Protection)	To Be Determined
OSHA	1218-AC49	Improve Tracking of Workplace Injuries and Illnesses	No
OSHA	1218-AC76	Streamlining of Provisions on State Plans for Occupational Safety and Health	To Be Determined
OSHA	1218-	Revocation of Obsolete PELs	To Be Determined
OSHA	1218-	Powered Industrial Trucks	To Be Determined
OSHA	1218-	Power Presses	To Be Determined
OSHA	1218-	Lock-Out/Tag-Out Update	To Be Determined
OWCP	1240-AA11	Black Lung Benefits Act: Medical Benefit Payments	To Be Determined
OWCP	1240-AA09	Longshore and Harbor Workers' Compensation Act: Transmission of Documents and Information	No

[1] Workforce Innovation and Opportunity Act (RIN: 1205-AB73)

[2] Workforce Innovation and Opportunity Act Joint Rule for Unified and Combined State Plans, Performance Accountability, and the One-Stop System Joint Provisions (RIN: 1205-AB74)

[3] Implementation of the Nondiscrimination and Equal Opportunity Provisions of the Workforce Innovation Act of 2014 (RIN: 1291-A37)

[4] Equal Employment Opportunity in Apprenticeship Amendment of Regulations (RIN: 1205-AB59)

[5] Conflict of Interest Rule: Investment Advice (RIN: 1210-AB32)

[6] Black Lung Benefits Act: Medical Evidence (RIN: 1240-AA10)

[7] Black Lung Benefits Act: Benefit Payments (RIN: 1240-AA11)

[8] Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales, and Computer Employees (RIN: 1235-AA11)

[9] Prohibitions Against Pay Secrecy Policies and Actions (RIN: 1250-AA06)

[10] Persuader Agreements: Employer and Labor Relations Consultant Reporting Under the LMRDA (RIN: 1245-AA03)

[11] Occupational Exposure to Crystalline Silica (RIN: 1218-AB70)

[12] Respirable Crystalline Silica (RIN: 1219-AB36)

[13] Improve Tracking of Workplace Injuries and Illnesses (RIN: 1218-AC49)

[14] Proximity Detection Systems for Mobile Machines in Underground Mines (RIN: 1219-AB78)

[15] Proximity Detection Systems for Continuous Mining Machines in Underground Coal Mines (RIN: 1219-AB65)