The Obama Administration used the occasion of Memorial Day weekend to release its required Semiannual Regulatory Agenda. The Agenda, which is not binding on the DOL, lists a number of items including two specifically related to the Fair Labor Standards Act (FLSA). One of them is the “white collar” overtime exemption rules that we have been telling you about recently. As we noted, these rules are expected in proposed form sometime in June. The other item is new to the Agenda: employee use of smartphones and other electronic devices after regular work hours.
The second Wage & Hour Division (WHD) entry is a new request for information (RFI). This RFI seeks information regarding “the use of technology, including portable electronic devices, by employees away from the workplace and outside of scheduled work hours.” The Agenda does not identify any potential rulemaking at this time, listing this item in the “pre-rule” stage. This means that for now WHD will simply seek information from the public on how the proliferation of portable electronic devices impact hours worked—and tracked—by employers and employees and other related FLSA issues. The DOL expects to publish this RFI in the Federal Register sometime in August 2015.
In past Agendas, we have also tracked the longstanding “Right to Know Under the Fair Labor Standards Act” item. According to the DOL, this proposed regulation would “enhance the transparency and disclosure to workers of their status as the employer’s employee or some other status such as independent contractor, and if an employee, how their pay is computed.” In 2010, the DOL announced that it would propose a rule on this same topic in April 2011, but so far has not done so. This item appeared on subsequent Agendas, most recently last fall as a “long term” item. However, the current Agenda completely omits this item. While this indicates that the DOL has abandoned this initiative, nothing would preclude its resurrection in future Agendas.
Finally, the Agenda also references a possible December 2015 release of the so-called “persuader rules” that are of particular note to labor law practitioners and employers who face union organizing activity. These oft-delayed rules were slated for a July release in the last Agenda.
As soon as the DOL releases more information about any of the above initiatives, we will pass it along.