Articles Discussing Government Agencies That Oversee The Workplace.

A federal government shutdown looms as current funding expires on September 30 and government leaders disagree on funding legislation. The present shutdown threat is fueled by two primary issues set against the backdrop of presidential election posturing by both political parties. President Barack Obama has announced that he will not follow the sequestration cuts the government forced upon itself in 2013 (the last time a partial government shutdown occurred), when it failed to agree on funding. Conservative Republican leaders have vowed to link defunding of Planned Parenthood to passing spending legislation. While leaders of the Republican-controlled Congress have vowed to avoid an unpopular government shutdown, this same vow was made in 2013.

The day after the House Appropriations Committee released a draft bill that would significantly limit certain federal agency rules and initiatives, the Subcommittee on Labor, Health and Human Services, and Education held a markup session of the measure. As previously discussed, riders in the draft appropriations bill would, among other things, prevent any funds from being used to enforce the National Labor Relations Board’s representation election rule, as well as its efforts to re-define “joint employment” under the National Labor Relations Act and assert jurisdiction over Native American businesses on tribal lands. Riders also would curtail several Department of Labor initiatives, such as its intent to re-define who qualifies as a “fiduciary” under ERISA, and prohibit funds from being used to create an Office of Labor Compliance. This Office will be integral to the enforcement of the President’s Fair Pay and Safe Workplaces Executive Order, often referred to as the “blacklisting” executive order. Other riders would effectively de-fund implementation of the Affordable Care Act.

A draft House appropriations bill to fund various federal agencies, including the Department of Labor, for Fiscal Year 2016 includes several provisions that would effectively halt a number of controversial regulatory efforts. Including stipulations on how federal appropriations are spent is one way to prevent agency rules or initiatives from moving forward.

In anticipation of the imminent release of the Department of Labor’s proposed rule revising the white collar overtime exemption under the Fair Labor Standards Act (FLSA), the House Subcommittee on Workforce Protections held a hearing on Wednesday to discuss federal wage and hour standards. Panelists and lawmakers were particularly concerned about the pending regulatory changes to the FLSA, and were critical of the Wage and Hour Division’s recent enforcement tactics.

On May 28, 2015, the Federal Acquisition Regulatory (FAR) Council published in the Federal Register its highly anticipated Notice of Proposed Rulemaking (NPRM) regarding the so-called “blacklisting” procedures ordered by President Obama in his Fair Pay and Safe Workplaces Executive Order (EO). Accompanying the proposed rule was separate guidance issued by the Department of Labor (DOL).

The federal agencies charged with implementing President Obama’s July 31, 2014 Fair Pay and Safe Workplaces Executive Order1 have released their much-anticipated proposed rule on this directive. On May 27, 2015, the Department of Labor (DOL) issued a 106-page proposed guidance document, and the Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA), issued a 131-page proposed rule, governing the terms of the so-called “blacklisting” Executive Order (EO). If finalized in their current form, the rule and guidance would immediately upend the current system of federal contracting by enabling federal agencies to reject a bid or cancel an existing contract – as well as initiate suspension and debarment proceedings – based on labor and employment law violations that a contractor may have already resolved or that have already been adjudicated.

In keeping with past practice, federal agencies released their spring regulatory agendas on the eve of a holiday weekend. These semiannual reports list all of the federal agency regulations currently under development or review. Notably, these reports include anticipated release dates for proposed or final regulations. While often aspirational, these dates provide some insight into the agencies’ priorities for the next six months. The following highlights some key pending regulatory actions from the spring agenda.

On Friday, May 15, 18 Democratic Senators sent a letter to President Obama calling for him to issue an executive order that would make the federal government a “model employer.” The letter is an updated version of letters the Congressional Progressive Caucus has previously sent to the President.

Amendments to the Federal Acquisition Regulation (FAR) aimed at eliminating substandard labor conditions within government contractors’ supply chains went into effect on March 2, 2015. Under the amended regulations, new solicitations will impose requirements on all government contractors and subcontractors as part of an effort to curb human trafficking. Contractors that provide supplies acquired abroad or perform services outside the United States are subject to additional requirements, including implementing compliance plans and completing compliance certification. For all contractors, noncompliance with the new regulations could result in financial penalties, termination for default, or suspension or debarment.

In the early morning of March 27, the Senate passed its version of a budget resolution by a vote of 52-46 after a marathon session of votes on numerous amendments. The so-called “Vote-a-Rama” included votes on measures that likely have no chance of advancing, but serve as political talking points in the months ahead and for the 2016 congressional and presidential elections. The Senate budget resolution process provides Senators an opportunity to secure votes on their amendments with very limited debate so long as the amendment somehow relates to the budget. The marathon voting session can be used to force lawmakers to publically take a position on many touchy issues. The official voting record often becomes a sword or shield come campaign season.

The U.S. Supreme Court handed the U.S. Department of Labor (DOL) a victory in a battle over whether the agency’s reversal of its stance on the exempt status of mortgage loan officers was subject to public notice and comment. In Perez v. Mortgage Bankers Association, the Court held that the DOL’s 2010 Administrator’s Interpretation concluding that mortgage loan officers do not qualify for the Fair Labor Standards Act (FLSA) administrative exemption was not subject to the notice-and-comment requirements of the Administrative Procedure Act (APA). The decision has implications far beyond the question of whether mortgage loan officers are exempt from the overtime requirements of the FLSA. In rejecting the argument that a federal agency must use the APA’s notice-and-comment procedures when it wishes to issue a new interpretation of a regulation that deviates significantly from a previously adopted interpretation, the Court removed a significant potential impediment to an agency making important policy changes through so-called “sub-regulatory” guidance.

In a case we labeled one of the “cases to watch” this term, a relatively unified Supreme Court decided in Perez v. Mortgage Bankers Association that a federal agency does not need to engage in notice-and-comment rulemaking pursuant to the Administrative Procedure Act (APA) before it can significantly alter an interpretive rule of an agency regulation, even if parties have relied on that rule to their detriment.

Employers hoping the U.S. Supreme Court would rein in federal agency rulemaking will be disappointed by the Court’s opinion in Perez v. Mortgage Bankers Association issued this morning. In the decision, which was consolidated with Nickols v. Mortgage Bankers Association, the Court held that agencies do not need to provide notice to the public and solicit input before reversing course on their own interpretive guidance.

On March 6, federal agencies charged with carrying out the Fair Pay and Safe Workplaces Executive Order (EO) submitted their proposed rule to the Office of Management and Budget (OMB) for review, signaling its imminent release. The so-called “blacklisting” EO provides that employers can be denied federal contracts if they or their subcontractors violated or allegedly violated a host of federal labor laws within the past three years. This EO will impose new and significant obligations on contractors and subcontractors.

A new Executive Order (EO) that imposes new and onerous obligations and risks on federal contractors was the subject of a House joint subcommittee hearing on Thursday. The Subcommittee on Workforce Protections and the Subcommittee on Health, Employment, Labor, and Pensions heard testimony on the impact Executive Order 13673 will have on federal contractors and subcontractors.