Regulatory Activity

Regulatory Actions by the Obama Administration Keep on Coming

Mar 6, 2015

As has been the case for the first two months of 2015 and the last half of 2014, Obama administration regulatory actions affecting the workplace seem to be announced on a weekly basis. Below is a snapshot of three developments that HR professionals should be aware of.

  1. Federal Contractor Obligations on Human Trafficking – SHRM and the Council for Global Immigration (CFGI) joined five other organizations in a letter requesting a 60-day extension to the March 2, 2015, effective date of a new federal contractor rule, “Strengthening Protections Against Trafficking in Persons in Federal Contracts,” published on January 29, 2015. The rule implements Executive Order 13627 on strengthening protections against human trafficking in federal contracting and requires contractors to certify that they have implemented a compliance plan and procedures to identify and remove human trafficking from their organization and their supply chain. In addition, contractors are prohibited from charging employees recruitment fees, although the rule does not define this term. The SHRM/CFGI letter urges the Federal Acquisition Regulatory Council to fully define what is meant by “recruitment fees” and to provide guidance on compliance plans before requiring contractors to certify that they are in compliance. The final rule can be found HERE.
  2. Immigration-Related Employment Issues – The Department of Homeland Security issued a final rule, effective May 26, 2015, that will extend employment authorization eligibility to H-4 dependent spouses of certain H-1B visa holders who are in the process of obtaining green cards. In comments supporting the proposed rule that were submitted last July, SHRM and the Council for Global Immigration recommended expansion of work authorization to all H-4 spouses and other nonimmigrant visa categories that do not currently carry spousal work authorization. The final rule can be found HERE.
  3. FMLA Updated Definition of “Spouse” – The Department of Labor issued a final rule updating the definition of “spouse” under the Family and Medical Leave Act (FMLA) to include same-sex marriage in light of the U.S. Supreme Court decision striking down sections of the Defense of Marriage Act. In its comments on the proposed rule, SHRM highlighted the need for clarifications to the rule in several areas to ensure successful and uniform interpretation. Key provisions of the final rule include the following:
  • Eligibility: To determine eligibility for FMLA benefits as a spouse, employers should look to the law in the state where the marriage was entered into (state of celebration), which is consistent with revised rules issued by the Internal Revenue Service, the Department of Defense and other agencies.
  • Documentation: The final rule allows, but does not mandate, employers to require employees who take leave to care for a family member to “provide reasonable documentation of the family relationship.” The employee may choose which reasonable documentation to present, and it “may take the form of either a simple statement from the employee or documentation such as a birth certificate or court document.”
  • Definition: “Spouse” includes individuals in lawfully recognized same-sex and common law marriages and marriages that were validly entered into outside of the United States if they could have been entered into in at least one state.

The updated definition and rule revisions go into effect March 27, 2015. The final rule can be found HERE.


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