Regulatory Agenda screen clip.pngFor roughly the last two years, the U.S. Department of Labor has been contemplating (some would say “threatening”) revisions to the recordkeeping regulations under the Fair Labor Standards Act that would require an employer who classifies an employee as exempt to prepare a written justification of the basis for the exemption. This document would have to be provided to the employee and would be subject to inspection by the Department of Labor. For obvious reasons, many employers strongly disfavor this proposal.

The Department of Labor’s plans for new regulations are published semiannually in the Unified Regulatory Agenda. The first entry relating to the proposed Right to Know rule, in the Spring 2010 agenda, indicated that proposed regulations would be published in August 2010. That date was later moved back to April 2011, and most recently to October 2011. In the most recent edition of the Unified Regulatory Agenda, published on January 20, 2012, the DOL moved the “Right to Know” rules from the “Proposed Rules Stage” to “Long-Term Actions,” and removes any projected date for issuing proposed rules. “Long-term actions” are defined in the agenda as “items under development but for which the agency does not expect to have a regulatory action within the 12 months after publication of this edition of the Unified Agenda.” That being the case, it appears that the Department of Labor does not plan to move forward with its Right to Know rules at least until January 20, 2013 – hardly surprising given that these will be controversial rules and this is an election year. 

However, once the election is over (and assuming President Obama remains in office), we can expect the Department to move forward once again on this proposal. According to a recent article in BNA’s Daily Labor Report (subscription required), Acting Wage and Hour Administrator Nancy Leppink called the Right to Know rule one of the Wage and Hour Division’s priorities, stating “We’re continuing to work on that regulation,” and that “We’re learning about what the issues are” from the Department’s ongoing misclassification enforcement initiative. This is probably not such good news for the employers who will have to comply with the new regulations. However, I’m certainly looking forward to them, as they will undoubtedly provide plenty of interesting new problems for us to write about on this blog. Stay tuned!